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ELEMENTARY  LAW 


BY 

WILLIAM   C.  ROBINSON,  LL.D. 

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WHITIFORD    PROFESSOR    OF    COMMON     LAW    IN    THE    CATHOLIC    UNIVERSITY    OF 

AMERICA  ;     SOMETIME     PROFESSOR    OF    LAW    IN    YALE    UNIVERSITY  ; 

AUTHOR    OF    "ELEMENTS    OF    AMERICAN    JURISPRUDENCE," 

** FORENSIC    ORATORY,"  "LAW    OF    PATENTS,"  ETC. 


New  Edition  Revised  and  Enlarged 

WITH  REFERENCES  TO  NEARLY  FIVE  THOUSAND  PRESCRIBED  COLLATERAL  READ- 
INGS FROM  MORE  THAN  TWO   HUNDRED  STANDARD  TREATISES 
ON  ALL  DEPARTMENTS  OF  THE  COMMON  LAW 


BOSTON 

LITTLE,  BROWN,  AND   COMPANY 

1910 


Copyright,  188'2,  1910, 
By  William    C.   Robinsoh. 


All  rights  reserved 

^    T 
\9«^ 


TO 

HENDRICK  BRADLEY  WRIGHT 

OF  Pennsylvania 

in  remembrance  of  his  kindness  as  an  instructor 

and  his  fidelity  as  a  friend 

This  Treatise 

IS 

Respectfully  Inscribed 


PREFACE 

In  preparing  this  new  edition  of  a  work  which,  in  one 
form  or  another,  has  been  in  use  among  law  students  for  the 
past  forty  years,  the  author  has  kept  constantly  in  mind  the 
fact  that  the  ordinary  and  legitimate  purpose  of  such  students 
is  to  qualify  themselves  to  begin  the  practice  of  the  law  with 
credit  to  their  profession,  with  safety  to  their  clients,  and 
with  profit  to  themselves.  The  young  practitioner  is  not 
expected  to  be  a  legal  philosopher  or  historian  or  critic,  but 
to  be  able  to  give  sound  advice  upon  those  legal  questions 
which  arise  in  common  social  and  domestic  life,  to  transact 
customary  legal  business  with  prudence  and  sagacity,  and  to 
conduct  to  a  just  issue  such  litigated  cases  as  are  likely  to  be 
confided  to  his  care.  To  fit  him  to  discharge  these  duties 
he  needs  an  accurate  and  fairly  extensive  knowledge  of  the 
general  rules  and  doctrines  which  constitute  the  great  body 
of  the  law;  a  special  familiarity  with  those  departments  of 
the  law  which  govern  the  commercial  transactions  of  the 
present  day;  and  a  practical  training  in  those  forms  and 
methods  of  procedure  which  it  will  be  his  daily  duty  to 
employ. 

Having  this  purpose  of  the  student  steadily  in  view  the 
author  has  endeavored  to  adapt  his  text-books  to  the  require- 
ments of  law  students  as  they  have  become  known  to  him 
through  a  long  life  of  professional  instruction  and  experi- 
ence. Himself  enjoying  when  a  student  the  example  and 
direction  of  one  of  the  great  advocates  of  the  past  century: 


viii  PREFACE 

engaged  in  active  practice  for  more  than  a  generation ;  serv- 
ing from  time  to  time  as  clerk  and  judge  of  courts  both 
criminal  and  civil;  and  all  the  while  devoting  many  of  his 
hours  and  thoughts  to  the  training  of  candidates  for  admis- 
sion to  the  Bar,  —  he  has  grown  more  and  more  confirmed 
in  his  conclusion  that  the  proper  way  to  educate  young 
lawyers  is :  First,  to  give  them  a  thorough  knowledge  of  all 
the  fundamental  and  universally  accepted  principles  and 
rules  of  modern  American  Law  through  the  careful  study 
of  a  series  of  its  standard  text-books;  Second,  to  follow  this 
instruction  with  the  detailed  investigation  of  the  most 
important  branches  of  the  law  in  more  expansive  treatises 
and  leading  cases;  and  Third,  to  place  them  in  a  local 
school  or  office  where  they  may  perceive  the  practical  appli- 
cation of  the  doctrines  they  have  learned  from  books,  and 
acquire  by  actual  participation  some  facility  in  the  methods 
which  they  will  so  soon  have  occasion  to  pursue. 

It  is  to  aid  the  student  and  his  teachers,  in  carrying  on 
the  earlier  portion  of  his  legal  education  according  to  these 
views,  that  the  elementary  text-books  of  the  present  author 
have  been  prepared.  In  his  "Elements  of  American  Juris- 
prudence "  he  has  endeavored  to  set  before  the  student  the 
Law  as  a  totality,  —  explaining  its  nature,  its  origin,  its  his- 
tory, its  divisions,  its  forms,  its  interpretation,  and  the 
methods  of  its  application  to  practical  affairs,  with  whatever 
else  a  student  ought  to  know  about  the  Law,  as  distinguished 
from  his  knowledge  of  the  rules  which  constitute  the  Law 
itself.  In  his  "Elementary  Law,"  especially  in  this  new 
edition,  he  has  attempted  to  state  the  universal  and  estab- 
lished rules  of  law,  now  in  force  in  this  country,  in  such  detail 
and  with  such  exactness  as  to  dispense  the  student  from  the 
further  study  of  a  number  of  its  ancient  and  well-settled 
branches,  and  to  equip  him  for  recourse  to  larger  text-books 


PREFACE  ix 

and  leading  cases  in  his  investigation  of  the  more  important 
and  progressive  departments  of  the  law.  For  use  in  connec- 
tion with  this  statement  he  has  collected  several  thousand 
valuable  collateral  readings  from  the  standard  treatises,  thus 
opening  to  the  student  a  vast  field  for  legal  research,  to  be 
explored  by  him  according  to  his  opportunities  and  zeal. 
In  his  "Elements  of  Forensic  Oratory  "  he  has  discussed  the 
principles  which  govern  all  the  processes  of  successful  advo- 
cacy; directed  the  young  lawyer  whence  to  seek  and  how  to 
collect  the  facts  which  constitute  his  cause;  where  to  find 
and  how  to  estimate  and  collate  his  law;  how  to  deal  with 
clients,  witnesses,  judges,  and  opposing  counsel;  how  to 
frame  his  arguments,  and  how  to  present  his  claims  to  courts 
and  juries,  —  an  early  training  often  overlooked,  but  with- 
out which  no  practitioner  ought  ever  to  be  allowed  to  put 
in  jeopardy  either  his  client's  interests  or  his  own.  It  is  the 
author's  judgment  that  to  these  three  volumes  the  student 
can  profitably  devote  a  large  proportion  of  his  first  year  of 
professional  study,  and  thus  lay  a  foundation  on  which  his 
subsequent  legal  structures  can  securely  stand. 

William  C.  Robinson. 
Washington.   Dec.  8,  1909. 


TABLE   OF   CONTENTS 


INTRODUCTION 

§  1.  Of  Law  in  General. 

2.  Of  the  Purpose  of  Law :  Legal  Rights :  Legal  Wrongs. 

3.  Of  Rights  Public  and  Private :  Public  and  Private  Law. 

4.  Of  International  Law:  National  Law. 

5.  Of  the  National  Law  of  the  United  States  of  America :   the  Com- 

mon Law. 

6.  Of  the  National  Law  of  the  United  States  of  America :  Maritime 

Law:  Ecclesiastical  Law. 

7.  Of  Federal  and  State  Law. 

8.  Of  the  Unwritten  and  Written  Law. 

9.  Of  the  Development  of  the  Unwritten  Law. 

10.  Of  the  Expression  of  the  Unwritten  Law  in  Maxims,  Definitions, 

and  Judicial  Decisions, 
n.  Of  the  Interpretation  of  the  LTnwritten  Law. 

12.  Of  the  Forms  of  Written  Law:  Constitutions. 

13.  Of  the  Forms  of  Written  Law:  Treaties. 

14.  Of  the  Forms  of  Written  Law:  Codes. 

15.  Of  the  Forms  of  Written  Law :  Statutes. 

16.  Of  the  Forms  of  Written  Law :  Classes  of  Statutes. 

17.  Of  the  Interpretation  of  the  Written  Law. 

18.  Of  the  Territorial  Jurisdiction  of  Laws :  Conflict  of  Laws. 

19.  Of  the  Effect  of  Changes  in  the  Law. 

20.  Of  the  Proof  of  Laws. 

21.  Of  the  Practical  Application  of  Law. 

22.  Of  Persons:  Natural  Persons:  Artificial  Persons. 

23.  Of  the  Distinguishing  Characteristics  of  Artificial  Persons, 

24.  Of  the  Creation  and  Powers  of  Artificial  Persons. 

25.  Of  the  Classes  of  Artificial  Persons. 

26.  Of  Things. 

27.  Of  the  Fundamental  Divisions  of  the  Law. 


BOOK  I 

OF  THE   LAW  OF  PRIVATE  RIGHTS 
28.  Of  the  Species  of  Private  Rights. 


xii  TABLE  OF  CONTENTS 

CHAPTER  I 

OF   PERSONAL   RIGHTS 
§  29.  Of  the  Nature  and  Divisions  of  Personal  Rights. 

SECTION    1 

OF   THE   RIGHT   OF   PERSONAL   SECURITY 

§  30.  Of  Personal  Security. 

31.  Of  the  Right  to  Life. 

32.  Of  the  Right  to  Limbs  and  Body. 

33.  Of  the  Legal  Protection  of  Life,  Limbs,  and  Body. 

34.  Of  the  Right  to  Health. 

35.  Of  the  Legal  Protection  of  Health. 

36.  Of  the  Right  to  Reputation. 

37.  Of  the  Legal  Protection  of  Reputation. 

38.  Of  Legal  Limitations  on  tlie  Right  of  Personal  Security. 

SECTION   II 

OF   THE    RIGHT    OF    PERSONAL    LIBERTY 

§  39.  Of  Personal  Liberty. 
40.  Of  the  Legal  Protection  of  the  Right  of  Personal  Liberty. 
4L  Of  the  Legal  Limitations  on  the  Right  of  Personal  Liberty. 


CHAPTER  n 

OF   PROPERTY   RIGHTS 

42.  Of  the  Right  of  Property. 

43.  Of  Property. 

SECTION    I 

OF   PROPERTY   RIGHTS    IN   GENERAL 

44.  Of  the  Species  of  Property  Rights. 

45.  Of  the  Legal  Protection  of  Property  Rights. 

46.  Of  the  Legal  Limitations  upon  Property  Rights. 

47.  Of  Estates. 

48.  Of  Estates  Real  and  Personal. 

49.  Of  Estates  Legal  and  Equitable. 

50.  Of  the  Species  of  Property:  Real  Property:   Personal  Property 

SECTION    II 

OF    REAL    PROPERTY 

§  5L  Of  the  Classes  of  Real  Property. 


TABLE   OF  COXTExNTS  Xlll 

Article  I 

OF  CORPOREAL  REAL  PROPERTY 

52.  Of  the  Species  of  Corporeal  Real  Property :  Land. 

53.  Of  Minerals. 

54.  Of  Waters. 

55.  Of  Vegetation:  Plants:  Crops. 

56.  Of  Fixtures. 

Article  II 

OF   INCORPOREAL   REAL   PROPERTY 

57.  Of  Incorporeal  Hereditaments. 

58.  Of  the  Creation  and  Extinguishment  of  Incorporeal  Heredita- 

ments. 

59.  Of  Commons. 

60.  Of  Advowsons:  Tithes:  Corodies:  Pensions. 

61.  Of  Offices:  Dignities. 

62.  Of  Annuities :  Rents. 

63.  Of  Franchises. 

64.  Of  the  Right  to  the  Lateral  and  Horizontal  Support  of  Land. 

65.  Of  Party  Walls. 

66.  Of  Pews  and  Burial  Rights. 

67.  Of  the  Right  to  Light  and  Air. 

68.  Of  Aquatic  Rights. 

69.  Of  Ways. 

Article  III 

OP   estates    IN    REAL   PROPERTY 

70.  Of  the  Species  of  Estates  in  Real  Property. 
7L  Of  Seisin. 

72.  Of  the  Relation  of  Seisin  to  Freeholds  in  Futuro. 

73.  Of  the  Relation  of  Seisin  to  Equitable  Estates  in  Land. 

74.  Of  Seisin  after  the  Statute  of  Uses. 

75.  Of  Seisin  under  the  Modern  Law  of  Real  Property. 

76.  Of  Entry. 

77.  Of  Estates  in  Fee  Simple. 

78.  Of  the  Creation  of  Estates  in  Fee  Simple. 

79.  Of  Estates  in  Fee  Tail. 

80.  Of  Estates  for  Life. 

81.  Of  Estates  in  Tail  after  Possibility  of  Issue  Extinct. 

82.  Of  Estates  by  Curtesy. 

83.  Of  Estates  in  Dower. 

84.  Of  Estates  in  Lieu  of  Dower. 

85.  Of  the  Enjoyment  of  an  Ivstate  for  Life. 

86.  Of  Estates  at  Will. 

87.  Of  Estates  from  Year  to  Year. 

88.  Of  Estates  for  Years. 

89.  Of  Estates  by  Sufferance. 


xiv  TABLE  OF  CONTENTS 

Article  IV 

OF   ABSOLUTE   AND    CONDITIONAL    ESTATES    IN   REAL   PROPERTY 

§  90.  Of  Estates  upon  Condition. 

91.  Of  the  Fulfilment  and  Breach  of  Conditions. 

92.  Of  Estates  in  Mortgage. 

93.  Of  Limitations  or  Conditions  in  Law. 

94.  Of  Conditional  Limitations. 

Article  V 

OP   present   and    future    estates   in   real  PROPERTY 

§  95.  Of  Estates  in  Possession  and  Estates  in  Expectancy. 

96.  Of  Estates  in  Reversion. 

97.  Of  Estates  in  Remainder. 

98.  Of  Vested  Remainders. 

99.  Of  Contingent  Remainders. 

100.  Of  Executory  Estates. 

101.  Of  the  Rule  in  Shelley's  Case. 

102.  Of  the  Rule  against  Perpetuities. 

Article  VI 

OF   JOINT   and   several   ESTATES    IN   REAL   PROPERTY 

§  103.  Of  the  Number  and  Connexion  of  the  Tenants  of  Estates  in 
Real  Property. 

104.  Of  Estates  in  Severaltj 

105.  Of  Estates  in  Joint  Tenancy. 

106.  Of  Estates  in  Entirety. 

107.  Of  Estates  in  Coparcenary. 

108.  Of  Estates  in  Common. 

109.  Of  Estates  in  Partnership. 

110.  Of  the  Reciprocal  Rights  and  Duties  of  Co  tenants. 

111.  Of  the  Partition  of  Joint  Estates. 

Article  VII 

OF   the   title   TO    ESTATES   IN   REAL   PROPERTY 

§  112.  Of  Title. 

113.  Of  Title  by  Descent. 

114.  Of  Title  by  Purchase. 

115.  Of  Title  by  Escheat. 

116.  Of  Title  by  Accretion. 

117.  Of  Title  by  Abandorunent. 

118.  Of  Title  by  Forfeiture. 

119.  Of  Title  by  Prescription. 

120.  Of  Title  by  Adverse  Possession. 

121.  Of  Title  by  Marriage. 

122.  Of  Title  by  Execution. 

123.  Of  Title  by  Judicial  Decree. 


TABLE   OF   CONTENTS  XV 

124.  Of  Title  by  Eminent  Domain. 

125.  Of  Title  by  Prior  Occupation. 

126.  Of  Title  by  Estoppel. 

127.  Of  Title  by  Grant. 

128.  Of  Title  by  Public  Grant. 

129.  Of  Title  by  Private  Grant:  Deeds. 

130.  Of  Title  by  Private  Grant:  the  Species  of  Deeds. 

131.  Of  Title  by  Private  Grant:  the  Contents  of  Deeds. 

132.  Of  Title  by  Private  Grant:  the  Execution  of  Deeds. 

133.  Of  Title  by  Private  Grant:  the  Delivery  of  Deeds. 

134.  Of  Title  by  Private  Grant :  the  Interpretation  of  Deeds. 

135.  Of  Title  by  Private  Grant:  the  Revocation  of  Deeds. 

136.  Of  Title  by  Private  Grant:  Voluntary  and  Fraudulent  Con- 

veyances. 

137.  Of  Title  by  Devise:  Wills. 

138.  Of  Title  by  Devise:  Revocation  of  Wills. 

139.  Of  Title  by  Devise:  Interpretation  of  Wills. 


SECTION   III 

OF    PERSONAL    PROPERTY 

140.  Of  the  Nature  of  Personal  Property. 

141.  Of  Chattels  Personal:  Choses  in  Possession:  Choses  in  Action. 

Article  I 

OF  ESTATES  IN  PERSONAL  PROPERTY 

142.  Of  the  Duration  of  Estates  in  Personal  Property. 

143.  Of  Absolute  and  Conditional  Estates  in  Personal  Property. 

144.  Of  Present  and  Future  Estates  in  Personal  Property. 

145.  Of  Joint  and  Several  Estates  in  Personal  Property. 

Article  II 

OF    TITLE    TO    ESTATES    IN    PERSONAL    PROPERTY 

146.  Of  the  Acquisition  of  Estates  in  Personal  Property. 

147.  Of  Title  by  Prerogative. 

148.  Of  Title  by  Forfeiture. 

149.  Of  Title  by  Succession. 

150.  Of  Title  by  Marriage. 

151.  Of  Title  by  Judicial  Decree 

152.  Of  Title  by  Occupancy. 

153.  Of  Title  by  Accession. 

154.  Of  Title  by  Confusion. 

155.  Of  Title  by  Creation. 

156.  Of  Title  by  Gift. 

157.  Of  Title  by  Testament. 

158.  Of  Title  by  Contract:    Essentials  of  a  Contract. 

159.  Of  Title  by  Contract:    Express  and  Inipiiod  Contracts. 

160.  Of  Title  by  Contract :    Oral  and  Written  Contracts. 


XVI  TABLE   OF  CONTENTS 

§  161.  Of  Title  by  Contract:  Construction  and  Validity  of  Contracts. 

162.  Of  Title  by  Contract:  Performance  of  Contracts. 

163.  Of  Title  by  Contract:  Contracts  of  Sale. 

164.  Of  Title  by  Contract :  Contracts  of  Bailment. 

165.  Of  Title  by  Contract :  Contracts  of  Scr^^ce. 

166.  Of  Title  by  Contract :  Contracts  of  Partnership. 

167.  Of  Title  by  Contract :  Contracts  of  Insurance. 

168.  Of  Title  by  Contract:  Contracts  of  Debt. 

169.  Of  Title  by  Contract :  Contracts  of  Indorsement. 

170.  Of  Title  by  Contract:   Contracts  of  Guaranty  and  Suretyship. 


CHAPTER  III 

OF    FAMILY    RIGHTS 
§  171.  Of  the  Nature  and  Classes  of  Family  Rights. 

SECTION    I 

OF  THE  RIGHTS  ARISING  OUT  OF  THE  RELATION  OF  HUSBAND  AND  WIPE 

§  172.  Of  Marriage. 

173.  Of  Divorce. 

174.  Of  the  Effect  of  Marriage. 

175.  Of  the  Rights  of  the  Husband  as  against  tlie  Wife. 

176.  Of  the  Rights  of  the  Wife  as  against  the  Husband. 

177.  Of  the  Rights  of  the  Husband  and  Wife  to  One  Another  as 

against  Tliird  Parties. 

SECTION   II 

OF   THE   RIGHTS   ARISING    OUT   OF   THE   RELATION   OF   PARENT   AND 

CHILD 

§  178.  Of  Children:   Legitimate,  Illegitimate  and  Adopted. 

179.  Of  the  Rights  of  Parents  as  against  their  Legitimate  Children. 

180.  Of  the  Rights  of  Legitimate  Children  as  against  their  Parents. 

181.  Of   the   Rights   of   Parents   and   their   Legitimate   Cliildren   as 

against  Third  Parties. 

182.  Of  the  Reciprocal  Rights  of  Parents  and  their  Adult  Legitimate 

Children. 

SECTION    III 

OF  THE  RIGHTS  ARISING  OUT  OF  THE  RELATION  OF  GUARDIAN  AND  WARD 

§  183.  Of  the  Species  of  Guardians. 

184.  Of  the  Reciprocal  Rights  of  Guardians  of  the  Person  and  their 

Wards. 

185.  Of  the  Reciprocal  Rights  of  Guardians  of  the  Estate  and  tlieir 

Wards. 

186.  Of  the  Rights  of  Guardians  and  Wards  as  against  Third  Parties. 

187.  Of  Guardians  ad  Litem. 

188.  Of  Guardians  of  Incapables. 


TABLE  OF  CONTENTS  XVU 

SECTION   IV 

OF  THE  RIGHTS  ARISING  OUT  OF  THE  RELATION  OF  MASTER  AND  SERVANT 

§  189.  Of  Menials. 

190.  Of  Apprentices. 

191.  Of  the  Reciprocal  Rights  and  Duties  of  Masters  and  Servants. 

192.  Of  the  Rights  of  Masters  and  Servants  as  against  Third  Parties. 

SECTION  V 

OF  THB   RIGHTS   ARISING   OUT  OF  THE   RELATION   OF   FAMILY   HEADS   AND 
THEIR    DEPENDANTS 

§  193.  Of  the  Family  Head. 

194.  Of  the  Reciprocal  Rights  of  the  Family  Head  and  his  Dependants. 

195.  Of  the  Rights  of  a  Family  Head  and  his  Dependants  as  against 

Third  Parties, 


BOOK   II 

OF  PRIVATE  WRONGS  AND  REMEDIES 
Part   I 

OF    PRIVATE    WRONGS. 

196.  Of  the  Nature  of  Private  Wrongs. 

197.  Of  the  Forms  of  the  Injuria. 

198.  Of  the  CavLsal  Relation  between  Injuria  and  Damnum. 

199.  Of  the  Classes  of  Private  Wrongs. 

CHAPTER  I 

OF   PRIVATE   WRONGS   AGAINST   PERSONAL   RIGHTS 

200.  Of  the  Species  of  Private  Wrongs  against  Personal  Rights. 

SECTION   I 

OF   PRIVATE    WRONGS   AGAINST   THE    RIGHT    OF    PERSONAL   SECURITY 

201.  Of  Threats. 

202.  Of  Violence. 

203.  Of  Nuisances  to  Health. 

204.  Of  Libel. 

205.  Of  Slander. 

206.  Of  Malicious  Prosecution. 

SECTION   II 

OF    PRIVATE   WRONGS    AGAINST   THE    RIGHT   OF   PERSONAL   LIBERTY 

I  207.  Of  False  Imprisonment. 
208.  Of  Indirect  Violations  of  Personal  Liberty. 


XVUl  TABLE   OF  CONTENTS 

CHAPTER  II 

OF  PRIVATE   WRONGS   AGAINST   PROPERTY   RIGHTS 
5  209.  Of  the  Nature  and  Species  of  Wrongs  against  Property  Rights. 

SECTION   I 

OF    PRIVATE    WRONGS    AGAINST    RIGHTS    IN    REAL    PROPERTY 

§  210.  Of  Disseisin. 

211.  Of  Abatement :  Intrusion :  Discontinuance :  Deforcement. 

212.  Of  Ouster. 

213.  Of  Trespass  Quare  Clausum  Fregit. 

214.  Of  Nuisances  to  Real  Property. 
2-15.  Of  Waste. 

216.  Of  Disturbance. 

SECTION    II 

OF   PRIVATE   WRONGS   AGAINST   RIGHTS    IN   PERSONAL   PROPBRTT 

§  217.  Of  Asportation  and  Detention. 

218.  Of  Damage  to  Choses  in  Possession. 

219.  Of  Conversion. 

220.  Of  Breach  of  Contract. 

221.  Of  Malicious  Interference  with  Contract. 

CHAPTER  III 

OF   PRIVATE   WRONGS   AGAINST   FAMILY   RIGHTS 
§  222.  Of  the  Nature  and  Classes  of  Wrongs  against  Family  Rights. 

SECTION    I 

OP  PRIVATE  WRONGS  AGAINST  THE  RELATION  OF  HUSBAND  AND  WIFE 

§  223.  Of  the  Violation  of  the  Rights  of  a  Husband  in  and  to  his  Wife. 
224.  Of  the  Violation  of  the  Rights  of  a  Wife  in  and  to  her  Husband. 

SECTION    II 

OF   PRIVATE   WRONGS   AGAINST   THE   RELATION   OF   PARENT   AND   CHILD 

§  225.  Of  the  Violation  of  the  Rights  of  a  Parent  in  and  to  his  Child. 
226.  Of  the  Wrongs  which  Violate  the  Rights  of  a  Child  in  and  to  its 
Parent. 

SECTION    III 

OF   PRIVATE   WRONGS   AGAINST   THE  RELATION  OF  GUARDIAN  AND  WARD 

§  227.  Of  the  Wrongs  which  Violate  the  Reciprocal  Rights  of  a  Guar- 
dian of  the  Person  and  his  Ward. 
228.  Of  the  Wrongs  which  Violate  the  Reciprocal  Rights  of  a  Guar- 
dian of  the  Estate  and  his  Ward. 


TABLE  OF  CONTENTS  XIX 

SECTION   IV 

OF  PRIVATE  WRONGS  AGAINST  THE  RELATION  OF  MASTER  AND  SERVANT 

§  229.  Of  the  Violation  of  the  Rights  of  a  Master  in  and  to  his  Servant. 
230.  Of  the  Wrongs  which  Violate  the  Rights  of  a  Servant  in  and  to 
his  Master. 

SECTION   V 

OF  PRIVATE  WRONGS  AGAINST  THE   RELATION   BETWEEN  A   FAMILY   HEAD 
AND    HIS    DEPENDANTS 

§  231.  Of  the  Wrongs  which  Violate  the  Rights  of  a  Family  Head  in 
and  to  his  Dependants. 
232.  Of  the  Violation  of  the  Rights  of  a  Dependant  in  and  to  the 
Family  Head. 

SECTION   VI 

OF    PRIVATE    WRONGS    COMMITTED    BY    MEMBERS    OF    THE    SAME    FAMILY 
AGAINST    ONE    ANOTHER 

§  233.  Of  the  Wrongs  Committed  by  the  Superior  in  a  Relation  against 
the  Inferior. 
234.  Of  the  Wrongs  Committed  by  the  Inferior  in  a  Relation  against 
the  Superior. 

CHAPTER  IV 

OF   TORT-FEASORS 

§  235.  Of  Sole  Tort-Feasors. 
236.  Of  Joint  Tort-Feasors. 


Part  II 

OF    LEGAL    REMEDIES 
237.  Of  the  Nature  and  Classification  of  Legal  Remedies. 


CHAPTER  I 

OF   EXTRA-JUDICIAL   REMEDIES 

238.  Of  Self-Defence. 

239.  Of  Recaption. 

240.  Of  Entry. 

241.  Of  the  Abatement  of  Nuisances. 

242.  Of  Distress. 

243.  Of  Accord  and  Satisfaction. 

244.  Of  Arbitration  and  Award. 

245.  Of  Retainer. 

246.  Of  Remitter. 

247.  Of  Liens. 


XX  TABLE   OF   CONTENTS 

CHAPTER  II 

OF   JUDICIAL   REMEDIES 

§  248.  Of  the  Constitution  and  Jurisdiction  of  Courts. 

249.  Of  the  Incidental  Powers  of  Courts. 

250.  Of  Civil  Actions. 

251.  Of  the  Jurisdiction  of  Civil  Courts  over  Civil  Actions. 

SECTION    I 

OF   ACTIONS    IN   THE   COURTS    OF   COMMON   LAW 

§  252.  Of  the  Common  Law  Actions. 

253.  Of  Actions:  Real,  Mixed,  and  Personal. 

254.  Of  Mixed  Actions :  Disseisin  or  Ejectment. 

255.  Of  Actions  Ex  Contractu:  Assumpsit. 

256.  Oi  Actions  Ex  Co>dractu:  Debt. 

257.  Oi  Actions  Ex  Contractu:  Covenant-Broken. 

258.  Of  Actions  Ex  Contractu :  Account. 

259.  Of  Actions  Ex  Delicto :  Trespass. 

260.  Of  Actions  Ex  Delicto:  Case. 

261.  Of  Actions  Ex  Delicto:  Trover. 

262.  Of  Actions  Ex  Delicto:  Replevin. 

263.  Of  Actions  Ex  Delicto :   Detinue. 

264.  Of  Extraordinary  Actions :  Prerogative  Writs. 

265.  Of  Extraordinary  Actions :  Mandamus, 

266.  Of  Extraordinaiy  Actions :  Procedendo. 

267.  Of  Extraordinary  Actions :  Prohibition. 

268.  Of  Extraordinary  Actions :  Quo  Warranto. 

269.  Of  Extraordinary  Actions :  Habeas  Corpus. 

270.  Of  Auxiliary  Actions. 

271.  Of  Auxiliaiy  Actions :  Garnishment. 

272.  Of  Auxiliary  Actions:  Scire  Facias. 

273.  Of  Auxiliary  Actions:  Writ  of  Error. 

274.  Of  Statutory  Actions. 

275.  Of  the  Election  of  Actions. 

276.  Of  the  Joinder  of  Actions. 

SECTION   II 

OF   THE    DEFENCES    TO    ACTIONS    IN    THE    COURTS    OF   COMMON    LAW 

§  277.  Of  the  Universal  Defences. 

278.  Of  the  Universal  Defences:    Want  of  Jurisdiction. 

279.  Of  the  Universal  Defences:    Action  Improperly  Instituted. 

280.  Of  the  Universal  Defences:    Statute  of  Limitations. 

281.  Of  the  Universal  Defences:  Joint  Wrong:  Equal  Fault. 

282.  Of  the  Universal  Defences:  Estoppel. 

283.  Of  the   Universal   Defences:     Accord   and    Satisfaction:    Arbi- 

tration and  Award :  Former  Recovery :  Release. 

284.  Of  the  Special  Defences  in  the  Actions  of  Assumpsit,  Debt,  and 

Covenant. 


TABLE   OF  CONTENTS  XXI 

285.  Of  the  Special  Defences  in  Actions  of  Account. 

286.  Of  the  Special  Defences  in  Actions  of  Trespass. 

287.  Of  the  Special  Defences  in  Actions  of  Trespass  on  the  Case. 

288.  Of  the  Special  Defences  in  Actions  of  Trover. 

289.  Of  tlie  Special  Defences  in  Actions  of  Replevin  and  Detinue. 

290.  Of  the  Special  Defences  in  Actions  of  Ejectment. 

291.  Of  the  Special  Defences  in  Extraordinary  and  Auxiliary  Actions. 

292.  Of  the  Defences  under  the  New  Procedure. 

SECTION    III 

OF   THE   PARTIES   TO   ACTIONS    IN   THE   COURTS   OF   COMMON   LAW 

293.  Of  the  Parties  Plaintiff  in  Actions  Ex  Contractu. 

294.  Of  the  Parties  Defendant  in  Actions  Ex  Contractu. 

295.  Of  the  Parties  Plaintiff  in  Actions  Ex  Delicto. 

296.  Of  the  Parties  Defendant  in  Actions  Ex  Delicto. 

297.  Of  the  Parties  to  Extraordinary  and  Auxiliary  Actions. 

298.  Of  the  Parties  to  Actions  under  the  New  Procedure. 


SECTION   IV 

OF  THE  PROCEDURE  IN  ACTIONS  IN  THE  COURTS  OF  COMMON  LAW 

299.  Of  Process:  its  Service  and  Return. 

300.  Of  Appearance  and  Hail. 

301.  Of  the  Pleadings:  their  Purpose,  Classes,  and  Order. 

302.  Of  the  Contents  of  Pleadings:  Demurrers. 

303.  Of  the  Contents  of  Pleadings:  Traverses. 

304.  Of  the  Contents  of  Pleadings:   Confession  and  Avoidance. 

305.  Of  the  Pleadings:  their  Verbal  Expression. 

306.  Of  the  Pleadings:  their  Interpretation. 

307.  Of  the  Pleadings  to  the  Jurisdiction. 

308.  Of  the  Pleadings  in  Abatement. 

309.  Of  the  Pleadings  to  the  Merits  of  the  Action:   the  Declaration. 

310.  Of  the  Pleadings  to  the  Merits:    Pleas  in  Bar:    the  General 

Issue. 

311.  Of  the  Pleadings  to  the  Merits:    Special  Pleas  in  Bar:    Justi- 

fication: Discharge. 

312.  Of  the  Pleadings  to  the  Merits:  the  Replication  and  Subsecjucnt 

Pleadings. 

313.  Of  the  Pleadings  to  the  Merits  in  Actions  of  Assumpsit. 

314.  Of  the  Pleadings  to  the  Merits  in  Actions  of  Debt. 

315.  Of  the  Pleadings  to  the  Merits  in  Actions  of  Covenant-Broken. 

316.  Of  the  Pleadings  to  the  Merits  in  yVctions  of  Account. 

317.  Of  the  Pleadings  to  tlie  Merits  in  Actions  of  Trespass. 

318.  Of  the  Pleadings  to  the  Merits  in  Actions  of  Trespass  on  the 

Case. 

319.  Of  the  Pleadings  to  the  Merits  in  Actions  of  Trover. 

320.  Of  the  Pleadings  to  the  Merits  in  Actions  of  Replevin. 

321.  Of  tiie  Pleadings  to  the  Merits  in  Actions  of  Detinue. 

322.  Of  the  Pleadings  to  the  Merits  in  Actions  of  Ejectment. 


XXll  TABLE   OF  CONTENTS 

§  323.  Of  the  Pleadings  to  the  Merits  in  Extraordinary  and  Auxiliary 
Actions. 

324.  Of  the  Pleadings  under  the  New  Procedure :   Code  Pleading. 

325.  Of  the  Pleadings:    the  Final  Issue:  the  Trial. 

326.  Of  the  Trial:  the  Jury:   Challenges:   Order  of  Trial. 

327.  Of  the  Trial :  the  Evidence. 

328.  Of   the   Trial:     the   Evidence:    Material   Evidence:    Relevant 

Evidence. 

329.  Of  the  Trial.:  the  Evidence :  Confidential  Communications. 

330.  Of  the  Trial :  the  Evidence :  Hearsay  Evidence. 

331.  Of  the  Trial:  the  Evidence:  the  Best  Evidence. 

332.  Of  the  Trial :  the  Evidence :  Fictions  and  Presumptions. 

333.  Of  the  Trial:  the  Evidence:    the  Relation  of  Oral  Evidence  to 

Written  Instruments. 

334.  Of  the  Trial :  the  Production  of  the  Evidence :   Facts  Judicially 

Noticed. 

335.  Of  the  Trial:    the  Production  of  the  Evidence:    Inspection  of 

Objects. 

336.  Of  the  Trial:    the  Production  of  the  Evidence:    Docvunentary 

Evidence. 

337.  Of  the  Trial:    the  Production  of  the  Evidence:    Testimony  of 

Witnesses :  Competency  of  Witnesses. 

338.  Of  the  Trial:    the  Production  of  the  Evidence:    Testimony  of 

Witnesses :   the  Examination  of  Witnesses  in  Court. 

339.  Of  the  Trial:    the  Production  of  the  Evidence:    Testimony  of 

Witnesses :  Depositions. 

340.  Of  the  Trial:    the  Production  of  the  Evidence:    Testimony  of 

Witnesses:  Contradiction  and  Impeachment  of  Witnesses. 

341.  Of  the  Trial:  Motion  for  a  Nonsuit:  Demurrer  to  the  Evidence. 

342.  Of  the  Trial:  the  Charge  to  the  Jury. 

343.  Of  the  Trial:   Deliberations  and  Verdict  of  the  Jury. 

344.  Of  the  Trial:    Stay  of  Judgment :  Motion  in  Arrest :  Motion  for 

a  New  Trial. 

345.  Of  the  Judgment. 

346.  Of  Stay  of  Execution :  Avdita  Querela :  Appeal :  Writ  of  Error. 

347.  Of  the  Execution. 

SECTION   V 

OF   THE   COURTS    OF   EQUITY 

§  348.  Of  Equity:  Courts  of  Equity:  Equity  Maxims. 

349.  Of  the  Sphere  of  Equity  Jurisdiction:  Injvmctions. 

350.  Of  the  Sphere  of  Equity  Jurisdiction :  Multipartite  Controversies. 

351.  Of  the  Sphere  of  Equity  Jurisdiction:    Controversies  in  which 

Courts  of  Equity  alone  can  give  Complete  and  Adequate  Relief. 

352.  Of  Equity  Jurisdiction  over  the  Specific  Performance  of  Contracts. 

353.  Of  Equity  Jurisdiction  over  the  Rescission  of  Contracts. 

354.  Of  Equity  Jurisdiction  over  the  Reformation  and  Cancellation 

of  Written  Instruments. 

355.  Of  Equity  Jurisdiction  over  the  Amelioration  or  Enforcement 

of  Penalties  and  Forfeitures. 


TABLE   OF  CONTENTS  XXlll 

356.  Of  Equity  Jurisdiction  over  the  Management  and  Partition  of 

Joint  Estates. 

357.  Of  Equity  Jurisdiction  over  the  Administration  of  Trust  Estates. 

358.  Of  Equity  Jurisdiction  over  tlie  Adjustment  of  Mortgages  and 

Liens. 

359.  Of  Equity  Jurisdiction  over  Assignments  of  Choses  in  Action. 

360.  Of  Equity  Jurisdiction  over  the  Conflicting   Claims  of  Bona 

Fide  Purchasers. 

361.  Of  Equity  Jurisdiction  over  the  Election  between  Alternate 

Rights  to  Property. 

362.  Of  Equity  Jurisdiction  over  the  Relations  of  Joint  Obligors: 

Exoneration :  Contribution  :  Subrogation. 

363.  Of  Equity  Jurisdiction  over  the  Conflicting  Rights  of  Creditors: 

Receivers :  Marshalling  Assets. 

364.  Of  Equity  Jurisdiction    over   the    Rights   of   Married   Women, 

Infants,  and  Lunatics. 

365.  Of  Equity  Jurisdiction  over  Proceedings  in  Aid  of  Suits  at  Law : 

Discovery:    Perpetuation  of  Testimony:    De  Bene  Esse:    Ne 
Exeat. 

366.  Of  Equity  Jurisdiction  over  Proceedings  in  Aid  of  Judgments 

and  Awards:    Creditors'  Bills:   Removal  of  Cloud  on  Title: 
New  Trials,  etc. 

367.  Of  Equity  Jurisdiction  over  the  Suppression  of  Useless  Litigation. 

368.  Of  BiUs  in  Equity. 

369.  Of  the  Parties  to  a  Bill  in  Equity. 

370.  Of  the  Process  in  Equity :  Appearance. 

371.  Of  the  Pleadings  in  Equity :    Disclaimer:   Demurrer:   Plea. 

372.  Of  the  Pleadings  in  Equity:   Answer:   Replication. 

373.  Of  the  Trial  in  Courts  of  Equity. 

374.  Of  the  Decree  in  Courts  of  Equity. 

375.  Of  Rehearing:  Bill  of  Review. 

376.  Of  the  Execution  in  Courts  of  Equity. 

SECTION   VI 

OF   THE   COURTS    OF   ADMIRALTY 

377.  Of  Maritime  Law. 

378.  Of  Marine  Contracts :  Marine  Torts. 

379.  Of  Vessels :  Sale :  Registry :  Enrolment. 

380.  Of  the  Ownersliip  of  Vessels. 

381.  Of  the  Hiring  of  Vessels:  Charter  Parties. 

382.  Of  Maritime  Liens. 

383.  Of  the  Master  of  a  Vessel. 

384.  Of  the  Seamen. 

385.  Of  the  Navigation  of  Vessels:    Pilotage:   Towage. 

386.  Of  the  Navigation  of  Vessels:    Collisions;    Signal  and  Sailing 

Rules. 

387.  Of  the  Cargo  and  Freight:    Bills  of  Lading:    Limited  Liability 

Acts. 

388.  Of  General  Average. 

389.  Of  Salvage. 


xxiv  TABLE   OF   CONTENTS 

§  390.  Of  Marine  Insurance. 

391.  Of  Marine  Torts  and  Crimes. 

392.  Of  Admiralty  Jurisdiction  over  Cases  of  Prize  and  Seizure. 

393.  Of  Actions  in  Rem  and  Actions  in  Personam. 

394.  Of  the  Parties  to  Actions  in  Admiralty. 

395.  Of  the  Libel. 

396.  Of  the  Process  in  Admiralty. 

397.  Of  the  Appearance  of  Parties  and  Intervenors. 

398.  Of  the  Pleadings  in  Admiralty. 

399.  Of  the  Trial,  Judgment,  and  Decree. 

400.  Of  the  Enforcement  and  Oonclusiveness  of  Decrees  in  Admiralty. 

SECTION   VII 

OF    THE    COURTS    OF    PROBATE 

§  401.  Of  the  Origin  and  Purpose  of  Courts  of  Probate. 

402.  Of  Probate  Jurisdiction  over  Testate  Estates. 

403.  Of  Probate  Jurisdiction  over  Intestate  Estates. 

404.  Of  Executors  and  Administrators. 

405.  Of  the  Settlement  of  Decedents'  Estates. 

406.  Of  the  Settlement  of  the  Estates  of  Insolvent  Debtors. 

407.  Of  General  Probate  Jurisdiction :    Guardians,  Trustees,  etc. 

408.  Of  the  Pleadings  in  Courts  of  Probate. 

409.  Of  the  Trial  and  Judgment  in  Courts  of  Probate. 


BOOK   III 

OF  PUBLIC  RIGHTS 

§  410.  Of  the  Nature  of  Public  Rights:  Sovereignty. 

411.  Of  Sovereignty,  Internal  and  External. 

412.  Of  Constitutional  Government. 

413.  Of  the  External  Sovereignty  of  the  United  States. 

414.  Of  the  Internal  Sovereignty  of  the  United  States. 

415.  Of  the  Sovereignty  of  the  Individual  States  of  the  American 

Union  and  of  their  People. 

CHAPTER  I 

OF  THE  LAW  OF  INTERNAL  SOVEREIGNTY:    CONSTITUTIONAL  LAW 

§  416.  Of  the  Functions  of  Government. 

417.  Of  the  Legislative  Function  of  the  United  States. 

418.  Of  the  Judicial  Function  of  the  United  States. 

419.  Of  the  Executive  Function  of  the  United  States. 

420.  Of  the  Governmental  Functions  of  the  Individual  States  of  the 

American  Union. 

421.  Of  Police  Powers. 

422.  Of  Subjects:  Allegiance. 


I 


TABLE  OF  CONTENTS  XXV 

§  423.  Of  atizens. 

424.  Of  the  Citizens  of  the  United  States. 

425.  Of  the  Citizens  of  the  Individual  States  of  the  American  Union, 

426.  Of  the  Rights  of  the  State  over  the  Persons  of  its  Subjects. 

427.  Of  the  Rights  of  the  State  over  the  Property  of  its  Subjects. 

428.  Of  the  Rights  of  the  Collective  People  against  the  State. 

429.  Of  the  Rights  of  Individual  Subjects  against  the  State:    the 

Right  to  Protection. 

430.  Of  the  Rights  of  Individual  Subjects  against  the  State:    the 

Right  to  Redress. 

CHAPTER  II 

OF  THE  LAW  OF  EXTERNAL  SOVEREIGNTY  :  INTERNATIONAL  LAW 

§  431.  Of  the  Nature  of  External  Sovereignty. 

432.  Of  Complete  and  Incomplete  External  Sovereignty. 

433.  Of  the  Territorial  Limits  of  External  Sovereignty. 

434.  Of  International  Law. 

SECTION    I 

OF  THE  RECIPROCAL  RIGHTS  AND   DUTIES  OF  STATES  IN  TIMES  OF  PEACE 

§  435.  Of  the  Creation  of  New  States  and  their  Admission  into  the 
Family  of  Nations. 

436.  Of  the  Right  of  a  State  to  Acquire  New  Territory. 

437.  Of   Political   and   Commercial    Intercourse    between    Sovereign 

States:    Intercourse  through  Sovereigns  in  Person. 

438.  Of    Political    Intercourse    between    Sovereign    States    through 

Ambassadors  and  Ministers. 

439.  Of   Political   and   Commercial    Intercourse   between    Sovereign 

States  through  Commissioners,  Consuls,  and  Resident  Aliens. 

440.  Of    Intercourse    between    Sovereign    States:    Treaties:     Inter- 

national Etiquette. 

441.  Of  the  Right  of  Intervention. 

442.  Of  Belligerent  Rights. 

443.  Of  the  Duties  of  Sovereign  States  toward  Themselves  and  On« 

Another. 

444.  Of  the  Causes  of  War  and  its  Prevention. 

SECTION    II 

OF   THE   RECIPROCAL   RIGHTS   AND   DUTIES   OF  STATES    IN   TIMES   OF   WAR 

§  445.  Of  War. 

Article  I 

OF   the    reciprocal   rights    and    DUTIES    OF    BELLIGERENTS 

§  446.  Of  the  Effects  of  War  upon  the  Mutual  Relations  of  the  Hostile 
States  and  of  tlieir  Citizens. 

447.  Of  the  Effects  of  War  upon  the  Property  Rights  of  Hostile 

States  and  their  Citizens. 

448.  Of  Military  Operations. 


XXVI  TABLE  OF  CONTENTS 

§  449.  Of  Prisoners  of  War. 

450.  Of  Maritime  Warfare. 

451.  Of  the  Military  Government  of  Invaded  Territory. 

452.  Of  Peaceful  Intercourse  between  Belligerents. 

453.  Of  the  Restoration  of  Peace. 

Article  II 

OP   THE   RIGHTS   AND    DUTIES   OF   NEUTRAI5 

§  454.  Of  Neutral  States. 

455.  Of  Neutral  Persons. 

456.  Of  Neutral  Vessels. 

457.  Of  Neutral  Goods. 

458.  Of  Blockades. 

459.  Of  the  Remedies  for  Violations  of  Neutrality. 


BOOK  IV 

OF  PUBLIC   WRONGS  AND  REMEDIES 

460.  Of  the  Nature  of  Public  Wrongs. 

Part  I 

OF   THE   LAW    OF    CRIMES 

461.  Of  the  Intrinsic  Nature  of  Crime. 


CHAPTER  I 

OF  THE  INGREDIENTS,  DEGREES,  AND  PERPETRATORS  OF  CRIMES 
IN   GENERAL 

§  462.  Of  the  Characteristics  of  Crimes  in  General. 

SECTION   I 

OF   THE    INGREDIENTS   OF   CRIME 

§  463.  Of  the  Criminal  Act. 

464.  Of  the  Criminal  Intent. 

465.  Of  the  Criminal  Intent:  Infancy. 

466.  Of  the  Criminal  Intent:  Insanity. 

467.  Of  the  Criminal  Intent:  Mistake  of  Fact. 

468.  Of  the  Criminal  Intent:  Accident. 

469.  Of  the  Criminal  Intent:  Necessity. 

470.  Of  the  Criminal  Intent:  Compulsion. 

471.  Of  the  Specific  Intent. 


I 


TABLE  OF  CONTENTS  xxvft 

SECTION   II 

OF   THE    DEGREES,    RELATIONS,    AND    PUNISHMENT   OF   CRIMES 

§  472.  Of  the  Degrees  of  Crime. 

473.  Of  the  Merger  of  Crimes. 

474.  Of  the  Victims  of  Crimes. 

475.  Of  the  Punishment  of  Crimes. 

476.  Of  the  Classification  of  Crimes :  Treason :  Felony :  Misdemeanor. 

477.  Of  Common  Law  Crimes  and  Statutory  Crimes. 

SECTION   III 

OF   THE   PERPETRATORS    OF   CRIMES 

§  478.  Of  Principals  in  the  First  Degree. 

479.  Of  Principals  in  the  Second  Degree. 

480.  Of  Accessaries  Before  the  Fact. 

481.  Of  Accessaries  After  the  Fact. 

CHAPTER  II 

OF   PARTICULAR  CRIMES 
§  482.  Of  the  Classes  of  Particular  Crimes. 

SECTION   I 

OF   CRIMES   AGAINST   THE   STATE 

§  483.  Of  Crimes  against  the  Sovereignty  of  the  State, 

Article  I 

OF   CRIMES    AGAINST   THE    EXTERNAL   SOVEREIGNTY    OF   THE   STATE 

§  484.  Of  International  Crimes. 
485.  Of  Crimes  against  All  Nations :  Piracy :   Slave  Trade. 

Article  II 

OF   CRIMES    AGAINST   THE    INTERNAL   SOVEREIGNTY    OF   THE   STATE 

§  486.  Of  Treason. 

487.  Of  Treason  against  the  ITnited  States :    Levying  War. 

488.  Of  Treason  against  the  United  States:   Adhering  to  the  Enemy, 

489.  Of  Treason  against  the  ITnited  States :   the  Overt  Act. 

490.  Of  Treason  against  the  Individual  States  of  the  American  Union, 

491.  Of  Persons  Capable  of  Treason. 

492.  Of  Misprision  of  Treason. 

493.  Of  Sedition. 

494.  Of  Crimes  against  the  Administration  of  Government. 


xxvm  TABLE   OF  CONTENTS 

SECTION   II 

OF   CRIMES   AGAINST   THE   PUBLIC   WELFARE 

§  495    Of  the  Public  Welfare. 

Article  I 

OF   CRIMES   against   THE    PUBLIC   PEACE 

§  496.  Of  Riot,  Rout,  and  Unlawful  Assembly 

497.  Of  Disturbing  Meetings. 

498.  Of  Forcible  Entry  and  Detainer. 

499.  Of  Duelling :  Challenging :  Affrays. 

500.  Of  Criminal  Libel. 

501.  Of  Carrying  Arms. 

Article  II 

OF   crimes   against   PUBLIC   POLICY 

§  502.  Of  Public  Nuisances. 

503.  Of  Blasphemy  and  Profanity. 

504.  Of  Bigamy. 

505.  Of  Criminal  Sexual  Acts. 

Article  III 

OF   CRIMES   against   PUBLIC   TRADE 

§  506.  Of  Cheating. 
507.  Of  Unlawful  Interference  with  Competition  in  Trade 

Article  IV 

OF  crimes  against  public  health 

§  508.  Of  the  Public  Health. 
509.  Of  Offences  against  Public  Health. 

Article  V 
OF  crimes  against  public  justice 

§  510.  Of  Official  Negligence. 

511.  Of  Oppression. 

512.  Of  Extortion. 

513.  Of  Compounding  Offences. 

514.  Of  Falsifying  Records. 

515.  Of  Bribery. 

516.  Of  Obstructing  Process. 

517.  Of  Escape:  Prison-Breach:  Rescue. 

518.  Of  Misprision  of  Felony:   Receiving  Stolen  Goods. 

519.  Of  Perjury:  Subornation  of  Perjury. 

520.  Of  Embracery. 

521.  Of  Barratry. 

522.  Of  Maintenance. 

523.  Of  Champerty. 


TABLE   OF  CONTENTS  xxix 

SECTION   III 

OF   CRIMES   AGAINST   THE   PERSONS   OF   INDIV1DUAI£ 

524.  Of  Suicide. 

525.  Of  Murder:  the  Person  lulling. 

526.  Of  Murder:  the  Person  Killed. 

527.  Of  Murder:  the  Act  of  Killing. 

528.  Of  Murder:  the  Intent  to  Kill. 

529.  Of  Murder :  the  Unla\\'fulness  of  the  Killing. 

530.  Of  Murder:  the  Malice  Aforethought. 

531.  Of  Murder:  the  Degrees  of  Murder. 

532.  Of  Manslaughter. 

533.  Of  Involuntary  Manslaughter. 

534.  Of  Voluntary  Manslaughter. 

535.  Of  Voluntary  Manslaughter:  Sudden  Combat. 

536.  Of  Voluntary  Manslaughter:   Sufficient  Provocation. 

537.  Of  the  Ultimate  Criterion  of  the  Criminality  of  the  Act  of  Kiliing 

538.  Of  the  Corpus  Delicti. 

539.  Of  Dying  Declarations. 

540.  Of  Mayhem. 

541.  Of  Battery. 

542.  Of  Criminal  Assault. 

543.  Of  Assaults  Aggravated  by  a  Specific  Intent. 

544.  Of  Rape. 

545.  Of  Rape :  the  Credibility  of  the  Victim  as  a  Witness. 

546.  Of  Abduction. 

547.  Of  Seduction. 

548.  Of  Crimes  against  Personal  Health. 

549.  Of  Crimes  against  Personal  Reputation. 

550.  Of  False  Imprisonment. 

551.  Of  Kidnapping. 

552.  Of  Boycotting. 

SECTION    IV 

OF   CRIMES   AGAINST   THE    PROPERTY    OF   UiDTVlVVAlJS 

553.  Of  Property  as  the  Subject  of  Crime. 

554.  Of  Arson:  the  Unlawful  Burning. 

555.  Of  Arson :  the  Dwelling  House  of  Another. 

556.  Of  Burglary :  the  Breaking  and  Entering. 

557.  Of  Burglary:  the  Dwelling  House. 

558.  Of  Burglary:  the  Night  Season. 

559.  Of  Burglary:  the  Felonious  Intent. 

560.  Of  Burglary:  Statutory  Burglary. 

561.  Of  Larceny:  the  Taking  and  Carrying  Away, 

562.  Of  Larceny:  the  Property. 

563.  Of  Larceny:  the  Ownership  of  the  Property. 
664.  Of  Larceny:  the  Intent  to  Steal. 

565.  Of  Robbery:  the  Larceny. 

566.  Of  Robbery:  the  Violence  or  Putting  in  Fear. 

567.  Of  Embezzlement. 


XXX  TABLE   OF  CONTENTS 

§  568.  Of  False  Pretences. 

569.  Of  Forgery. 

570.  Of  Counterfeiting. 

571.  Of  Malicious  Mischief. 

572.  Of  Piracy. 

SECTION   V 

OF   IMPERFECT   CRIMES 

§  573.  Of  Perfect  and  Imperfect  Crimes. 

574.  Of  Attempts. 

575.  Of  Conspiracy. 

576.  Of  Solicitation. 

Part  II 

OF    CRIMINAL   PROCEDURE 
§  577.  Of  the  Prosecution  and  Punishment  of  Crime. 

CHAPTER  I 

OF   CRIMINAL   COURTS   AND  THEIR  JURISDICTION 

§  578.  Of  Criminal  Courts. 

579.  Of  the  Jurisdiction  of  Criminal  Courts. 

580.  Of  the  Jurisdiction  of  Criminal  Courts  as  Dependent  on  the 

Locality  of  the  Crime. 
58  L  Of  the  Jurisdiction   of  Criminal  Courts  as  Dependent  on  the 

Nature  or  Punishment  of  the  Crime. 
582.  Of  the  Jurisdiction  of  Criminal  Courts  over  the  Persdn  of  the 

Accused. 

CHAPTER  II 

OF   THE   PROCESS   IN   CRIMINAL  CASES 

§  583.  Of  Arrest  by  Warrant. 

584.  Of  Arrest  without  Warrant :  Hue  and  Cry. 

585.  Of  the  Act  of  Arrest. 

586.  Of  Arrest  on  Requisition :  Extradition. 

587.  Of  the  Return  of  Criminal  Process :  Commitment. 

588.  Of  Bail. 

689.  Of  the  Treatment  of  the  Accused  while  in  Custody. 

CHAPTER  III 

OF   THE   PLEADINGS   IN    CRIMINAL   CASES 

§  590.  Of  the  Formal  Accusation  against  the  Alleged  Offender. 

591.  Of  the  Formal  Accusation:  Indictment:    Presentment:    Infor- 

mation. 

592.  Of  the  Grand  Jury. 


TABLE   OF  CONTENTS  XXXl 

§  593.  Of  the  Indictment  or  Information:   its  General  Requisites. 

594.  Of  the  Indictment  or  Information:  the  Description  of  the  Ac- 

cused and  of  the  Place  and  Time  of  liis  Offence. 

595.  Of  the  Indictment  or  Information :  the  Description  of  the  Crimi- 

nal Act  and  of  the  Person  or  Property  Injured. 

596.  Of  the  Arraignment. 

597.  Of  Counsel  and  Guardian  for  the  Accused. 

598.  Of  Motions  to  Quash :   Motions  for  a  Change  of  Venue. 

599.  Of  Dilatory  Pleas. 

600.  Of  Demurrers. 

601.  Of  the  Plea  of  Guilty:  Nolo  Contendere. 

602.  Of  the  Plea  of  Former  Jeopardy. 

603.  Of  the  Plea  of  Pardon. 

604.  Of  the  Plea  of  Not  Guilty. 

CHAPTER  IV 

OF  THE  TRIAL,  JUDGMENT,  AND  EXECUTION  IN    CRIMINAL  CASE3 

§  605.  Of  the  Trial :  the  Right  of  Trial  by  Jury. 

606.  Of  the  Trial :  the  Petit-Jury. 

607.  Of  the  Trial :  the  Rights  of  the  Accused. 

608.  Of  the  Trial :  the  Evidence. 

609.  Of  the  Trial:  the  Arguments  of  Counsel. 

610.  Of  the  Trial :   the  Charge  of  the  Court  to  the  Jury. 

611.  Of  the  Trial:  the  Deliberations  of  the  Jury:    tlie  Verdict. 

612.  Of  Motions  for  a  New  Trial:   Motions  in  Arrest  of  Judgment. 

613.  Of  the  Judgment  or  Sentence. 

614.  Of  Writs  of  Error :  Petitions  for  Pardons. 

615.  Of  Execution. 

616.  Of  Stay  of  Execution  in  Capital  Cases:    Pregnancy:  Insanity. 

617.  Of  Execution  in  Capital  Cases. 


INDEX 695 


TABLE   OF  REFERENCES 


Text-Book. 

Edition. 

Mode  of 
Reference. 

Abbott,  Trial  Brief  (Criminal). 

1902 

Top  page. 

Adams,  Doctrine  of  Equity  (Sharswood  Ed.). 

1873 

Side  page. 

Addison,  Contracts  (Abbott  and  Wood  Ed.). 

1888 

Side  page. 

Addison,  Torts. 

1891 

Paragraph. 

Andrews,  American  Law. 

1908 

Paragraph. 

Anson,  Contracts  (Knowlton  Ed.). 

1888 

Side  page. 

Archbold,  Criminal  Procedure. 

1887 

Top  page. 

Austin,  Jurisprudence. 

1885 

Top  page. 

Barbour,  Rights  of  Persons  and  Property. 

1890 

Top  page. 

Beach,  Equity  Pleading  and  Practice. 

1892 

Paragraph. 

Beach,  Modern  Etjuity  Jurisprudence. 

1900 

Paragraph. 

Beach,  Private  Corporations. 

1905 

Paragraph. 

Beccaria,  Crimes  and  Piniishments. 

1872 

Volume. 

Benedict,  Admiralty. 

1894 

Paragraph. 

Benjamin,  Contracts. 

1907 

Top  page. 

Bishop,  Contracts  (Early  Ed.). 

1907 

Paragraph. 

Bishop,  Criminal  Law. 

1892 

Paragraph. 

Bishop,  Criminal  Procedure. 

1895 

Paragraph. 

Bishop,  Statutory  Crimes. 

1901 

Paragraph. 

Bishop,  Written  Laws. 

1882 

Paragraph. 

Bispham,  Principles  of  Equity 

1905 

Paragraph. 

Black,  Interpretation  of  Laws. 

1896 

Paragraph. 

Blackstone,  Commentaries. 

1861 

Side  page. 

Bliss,  Code  Pleading. 

1894 

Paragraph. 

BoUes,  Important  English  Statutes. 

1885 

Top  page. 

Boone,  Real  Property. 

1901 

Paragraph. 

Bradner,  Evidence. 

1898 

Cliapter. 

Brantly,  Personal  Property. 

1891 

Paragraph. 

Broom,  Commentaries. 

1873 

Side  page. 

Broom,  Legal  Maxims. 

1868 

Paragraph. 

Browne,  Parol  Evidence. 

1893 

Paragraph. 

Browne,  Usages  and  Customs  (Clarke  Ed.). 

1881 

Paragraph. 

Bryant,  United  States  Constitution. 

1901 

Top  page. 

Burrill,  Circumstantial  Evidence. 

1859 

Top  page. 

Chitty,  Pleading. 

1876 

Page. 

Clark,  Contracts  (Tiffany  Ed.). 

1904 

Paragraph. 

Clark,  Corporations. 

1897 

Paragraph. 

Clark,  Criminal  Law  (Tiffany  Ed.). 

1902 

Paragraph. 

Clark,  Criminal  Procedure. 

1895 

Paragraph. 

XXXIV 


TABLE  OF  REFERENCES 


Text-Book. 

Edition. 

Mode  of 
Reference. 

Clark,  Elementary  Law. 

1909 

Paragraph. 

Clark  and  Marshall,  Corporations. 

1901 

Paragraph. 

Clark  and  Marshall,  Criminal  Law. 

1905 

Paragraph. 

Cohen,  Admiralty. 

1883 

Top  page. 

Coke  Institutes. 

1809 

Side  page. 

Conkling,  Admiralty. 

1857 

Top  page. 

Cook,  Corporations. 

1908 

Paragraph. 

Cooley,  Constitutional  Law. 

1898 

Top  page. 

Cooley,  Constitutional  Limitations. 

1903 

Top  page. 

Cooley,  Torts. 

1888 

Side  page. 

Croswell,  Executors  and  Administrators. 

1889 

Paragraph. 

Croswell,  Handbook  on  Executors,  etc. 

1897 

Paragraph. 

Cruise,  Digest. 

1827 

Titles. 

Daniells,  Chancery  Pleading  and  Practice. 

1894 

Side  page. 

Darlington,  Personal  Property. 

1891 

Top  page. 

Davis,  International  Law. 

1903 

Top  page. 

Desty,  Criminal  Law. 

1882 

Paragraph. 

Desty,  Shipping  and  Admiralty. 

1879 

Paragraph. 

Digby,  History  of  the  Law  of  Real  Property. 

1897 

Top  page. 

Dillon,  Laws  and  Jurisprudence  of  England 

and  America. 

1894 

Top  page. 

Drake,  Attaclmaent. 

1891 

Paragraph. 

Dunlap,  Admiralty. 

1850 

Top  page. 

Dwarris,  Statutes  (Potter  Ed.). 

1871 

Top  page. 

Dwight,  Law  of  Persons  and  Property. 

1894 

Top  page. 

Etting,  Admiralty  Jurisdiction. 

1879 

Top  page. 

Federalist  (Ford.  Ed.). 

1898 

Top  page. 

Fetter,  Equity. 

1895 

Paragraph, 

Foster,  Constitution. 

1895 

Paragraph. 

Foster,  First  Book  of  Practice. 

1897 

Top  page. 

Gillett,  Indirect  and  Collateral  Evidence. 

1897 

Paragraph. 

Glenn,  International  Law. 

1895 

Paragraph. 

Gould,  Pleading. 

1899 

Chapters  and 
Sections. 

Green,  Making  of  England  (Harper  Ed.). 

1882 

Top  page. 

Greenleaf,  Evidence. 

1899 

Paragraph. 

Hageman,  Privileged  Communications. 

1889 

Paragraph, 

Hare,  American  Constitutional  Law. 

1889 

Top  page. 

Harris,  Identification. 

1892 

Paragraph. 

Hawley,  Arrest. 

1889 

Top  page. 

Hawley,  Criminal  Law  (McGregor  Ed.), 

1896 

Top  page. 

TABLE  OF   REFERENCES 


XXXV 


Text-Book. 

Edition. 

Mode  or 
Referencs. 

Hawley,  Interstate  Extradition. 

1890 

Top  page. 

Heard,  Criminal  Pleading. 

1879 

Top  page. 

Henry,  Admiralty. 

1885 

Paragraph. 

High,  Extraordinary  Legal  Remedies. 

1896 

Paragraph. 

Hochheimer,  Crimes  and  Criminal  Procedure. 

1904 

Paragraph. 

Holland,  Jurisprudence. 

1900 

Top  page. 

Hughes,  Admiralty. 

1901 

Paragraph. 

Hughes,  Grounds  and  Rudiments. 

1908 

Paragraph. 

Jacobs,  Domicile. 

1887 

Paragraph. 

Jaggard,  Torts. 

1895 

Paragraph, 

Jameson,  Constitutional  Conventions. 

1887 

Paragraph. 

Jones,  Easements. 

1898 

Paragraph, 

Jones,  Evidence. 

1908 

Paragraph. 

Jones,  Mortgages. 

1904 

Paragraph. 

Jones,  Real  Property. 

1896 

Paragraph. 

Keener,  Quasi  Contracts. 

1893 

Top  page. 

Kenny,  Criminal  Law  (Webb  Ed.). 

1907 

Top  page. 

Kent,  Commentaries. 

1860 

Side  page. 

Kerr,  Real  Property. 

1895 

Paragraph. 

Kirchwey,   Readings  on  the   Law  of   Real 

Property, 

1900 

Top  page. 

Langdell,  Contracts. 

1880 

Paragraph. 

Lawson,  Contracts. 

1892 

Paragraph. 

Lawson,  Expert  and  Opinion  Evidence. 

1900 

Top  page. 

Lawson,  Presumptive  Evidence. 

1899 

Top  page. 

Lawson,  Usages  and  Customs. 

1881 

Top  page. 

Long,  Domestic  Relations. 

1905 

Paragraph, 

Markby,  Elements  of  Law. 

1889 

Paragraph. 

Marshall,  Federal  Constitution. 

1903 

Top  page. 

Maxwell,  Code  Ploiiding. 

1892 

Top  page. 

Maxwell,  Pleading  and  Practice. 

1896 

Paragraph. 

May,  Law  of  Crimes. 

1905 

Paragraph. 

McClain,  Criminal  Law. 

1897 

Paragraph. 

McKelvey,  Evidence. 

1898 

Paragraph. 

McMahon,  Coroners. 

1907 

Top  page. 

Merwin,  Equity  and  Equity  Pleading. 

1895 

Paragraph. 

Metcalf,  Contracts. 

1888 

Top  page. 

Miller,  Constitution  of  the  United  States. 

1891 

Top  page. 

Moore,  Extradition  and  Interstate  Rendition. 

1891 

Paragraph. 

Moore,  International  Law. 

1906 

Paragraph. 

Morawetz,  Private  Corporations. 

1886 

Paragraph. 

Morse,  Citizenship. 

1881 

Paragraph. 

XXX  VI 


TABLE  OF  REFERENCES 


Text-Book. 

Edition. 

Mode  op 

Reference. 

Page,  Wills. 

1901 

Paragraph. 

Parsons,  Contracts. 

1904 

Side  page. 

Parsons,  Shipping  and  Admiralty. 

1869 

Top  page. 

Perley,  Mortuary  Law. 

1896 

Top  page. 

Perry,  Pleading. 

1897 

Top  page. 

Pingrey,  Real  Property. 

1895 

Paragraph. 

Pollock,  Torts  (Webb  Ed.). 

1894 

Top  page. 

Pomeroy,  Equity  Jurisprudence. 

1905 

Paragraph. 

Pomeroy ,  International  Law  in  Times  of  Peace. 

1886 

Paragraph. 

Prentice,  Police  Powers. 

1894 

Top  page. 

Prentice  and  Egan,  Commerce  Clause. 

1898 

Top  page. 

Rapalje,  Criminal  Procedure. 

1889 

Paragraph. 

Rapaije,  Witnesses. 

1887 

Paragraph. 

Redfield,  Wills. 

1877 

Side  page. 

Reynolds,  Evidence. 

1905 

Paragraph. 

Rice,  American  Probate  Law. 

1894 

Top  page. 

Rice,  Criminal  Evidence. 

1893 

Paragraph. 

Rice,  Evidence. 

1892 

Paragraph. 

Rice,  Real  Property. 

1897 

Paragraph. 

Robinson,  American  Jurisprudence. 

1900 

Paragraph. 

Robinson,  Forensic  Oratory. 

1893 

Paragraph. 

Rogers,  Expert  Testimony. 

1891 

Paragraph. 

Rorer,  Interstate  Law. 

1879 

Top  page. 

Roscoe,  Criminal  Evidence. 

1888 

Side  page. 

Russell,  Crimes. 

1896 

Top  page. 

Schouler,  Domestic  Relations. 

1895 

Paragraph. 

Schouler,  Executors  and  Administrators. 

1901 

Paragraph. 

Schouler,  Personal  Property. 

1896 

Paragraph. 

Shinn,  Attachment  and  Garnishment. 

1896 

Paragraph. 

Shipman,  Pleading. 

1895 

Paragraph. 

Smith,  Coroners  and  Constables. 

1897 

Top  page. 

Smith,  Personal  Property. 

1893 

Paragraph. 

Spear,  Law  of  Extradition. 

1884 

Top  page. 

Spelling,  Extraordinary  Relief. 

1901 

Paragraph. 

Spencer,  Marine  Collisions. 

1895 

Paragraph. 

Starkie,  Evidence  (Sharswood  Ed.). 

1876 

Side  page. 

Stephen,  Evidence. 

1876 

Paragraph. 

Stephen,  Pleading. 

1901 

Paragraph. 

Story,  Conflict  of  Laws. 

1883 

Paragraph. 

Story,  Constitution  of  the  United  States. 

1891 

Paragraph. 

Story,  Equity  Jurisprudence. 

1886 

Paragraph. 

Story,  Equity  Pleading. 

1892 

Paragraph. 

Straker,  Compendium  of  Evidence. 

1899 

Top  page. 

Sutherland,  Statutes  (Lewis  Ed.). 

1904 

Paragraph. 

TABLE   OF  REFERENCES 


XXXVU 


Text-Book. 

Edition. 

Mode  of 
Reference. 

Thayer,  Evidence. 

1898 

Top  page. 

Thompson,  Private  Corporations. 

1908 

Paragraph. 

Thornton,  Lost  Wills. 

1890 

Paragraph. 

Tiedeman,  Equity. 

1893 

Paragraph. 

Tiedeman,  Real  Property. 

1892 

Paragraph. 

Tiedeman,  State  and  Federal  Control. 

1900 

Paragraph. 

Tiedeman,  Unwritten  Constitutions. 

1890 

Top  page. 

Tiffany,  Domestic  Relations. 

1896 

Paragraph. 

Tiffany,  Real  Property. 

1903 

Paragraph. 

Tucker,  Constitution. 

1899 

Paragraph. 

Underhill,  Criminal  Evidence. 

1898 

Paragraph, 

Underbill,  Evidence. 

1894 

Paragraph. 

Vickers,  Police  Officers  and  Constables. 

1889 

Top  page. 

Wade,  Attachment  and  Garnishment. 

1886 

Paragraph. 

Walker,  American  Law. 

1905 

Paragraph. 

Wambaugh,  Study  of  Cases. 

1894 

Cliapters. 

Waples,  Attachment  and  Garnishment. 

1895 

Chapters. 

Waples,  Proceedings  in  Rem. 

1882 

Paragraph. 

Warvelle,  Real  Property. 

1900 

Top  page. 

Washburn,  Easements. 

1885 

Chapters. 

Washburn,  Real  Property. 

1902 

Paragraph. 

Webster,  Citizenship. 

.   1891 

Top  page. 

Webster,  Naturalization. 

1895 

Top  page. 

Wharton,  American  Law. 

1884 

Paragraph. 

Wharton,  Conflict  of  Laws. 

1905 

Paragraph. 

Wharton,  Contracts. 

1882 

Paragraph. 

Wharton,  Criminal  Law. 

1896 

Paragraph. 

Wharton,  Criminal  Pleading  and  Practice. 

1889 

Paragraph. 

Wharton,  Evidence. 

1888 

Paragraph. 

Wliarton,  Evidence  in  Criminal  Issues. 

1884 

Paragraph. 

Wharton,  International  Law. 

1887 

Paragraph. 

Wheaton,  International  Law  (Dana  Ed.). 

1866 

Paragraph. 

Wigmore,  Evidence. 

1904 

Paragraph. 

Willard,  Equity  (Potter  Ed.). 

1903 

Top  page. 

Williams,  Real  Property. 

1866 

Side  page. 

Wills,  Circumstantial  Evidence  (Beers  Ed.). 

1905 

Cliapters. 

Woerner,  Administration  Law. 

1899 

Paragraph. 

Wood,  Mandamus,  etc. 

1896 

Page. 

Wood,  Practice  Evidence. 

1886 

Paragraph. 

Woolsey,  International  Law. 

1899 

Paragraph. 

Woolsey,  Political  Science. 

1889 

Top  page. 

TABLE 

Showing  the  Topical  Correspondence  between  the  Paragraphs 
OF  the  Editions  of  1882  and  1910 


Edition  of 

Edition  of 

Edition  of 

Edition  of 

1S82 

1910 

1882 

1910 

Sections 

Sections 

Sections 

Sections 

1 

1 

39 

26,  51 

2 

4,  18,  431-459 

40 

26,  51 

3 

7 

41 

26,  50,  51 

4 

8 

42 

26,  50 

5 

5 

43 

56 

6 

9 

44 

52,  53,  54,  55 

7 

10 

45 

57,  58 

8 

12,  13,  14 

46 

60 

9 

15 

47 

60 

10 

16,20 

48 

59 

11 

16 

49 

69 

12 

16 

50 

61 

13 

11,  17 

51 

61 

14 

11,  17,  19 

52 

63 

15 

2 

53 

60 

16 

3,  28,  410 

54 

62 

17 

22 

55 

62 

18 

23,24 

56 

57 

19 

25 

57 

64-68 

20 

25 

58 

26,  50 

21 

348 

59 

26,  51 

22 

6,  377-400 

60 

47 

23 

28,  29 

61 

47 

24 

171 

62 

48 

25 

29,  30,  31 

63 

49 

26 

32 

64 

70 

27 

32 

65 

70 

28 

34 

66 

70 

29 

36 

67 

70 

30 

38 

68 

70 

31 

33 

69 

70 

32 

35 

70 

71 

33 

37 

71 

71 

34 

39 

72 

71 

35 

41 

73 

71 

36 

40 

74 

71 

37 

42,  44-46 

75 

71 

38 

43 

76 

72 

xf 


COMPARATIVE  TABLE" 


Edition  of 

Edition  of 

Edition  of 

Edition  of 

1882 

1910 

1882 

1910 

Sections 

Sections 

Sections 

Sections 

77 

73,  74 

127 

114 

78 

73,  74 

128 

115 

79 

74 

129 

116 

80 

75 

130 

117 

81 

75 

131 

118 

82 

58 

132 

119 

83 

71 

133 

120,  125,  126 

84 

76 

134 

121 

85 

70 

135 

122 

86 

70,  77,  78 

136 

123 

87 

79 

137 

124 

88 

80 

138 

127 

89 

80 

139 

128 

90 

81 

140 

129 

91 

82 

141 

129 

92 

83,84 

142 

130 

93 

85 

143 

130 

94 

88 

144 

131 

95 

86 

145 

134,  136 

96 

87 

146 

132 

97 

89 

147 

133,  135 

98 

70,90 

148 

137 

99 

90' 

149 

138 

100 

90 

150 

139 

101 

90 

151 

137,  401-405 

102 

90,  91,  92 

152 

140 

103 

93,  94 

153 

141 

104 

90 

154 

142,  143 

105 

95 

155 

143 

106 

96,  97,  100,  101 

156 

144,  145 

107 

96,  97,  100,  101 

157 

146,  147 

108 

96 

158 

148 

109 

97,  98 

159 

149 

110 

99 

160 

150 

111 

98,  99 

161 

151,  405-409 

112 

100,  102 

162 

152 

113 

103 

163 

153,  154 

114 

104 

164 

155 

115 

105 

165 

156 

116 

105 

166 

157,  402-405 

117 

105 

167 

157 

lis 

105 

168 

158 

119 

105 

169 

158 

120 

106,  108,  109 

170 

158 

121 

107 

171 

158 

122 

110,  111 

172 

158 

123 

112 

173 

160 

124 

113 

174 

159 

125 

113 

175 

162 

126 

115 

176 

18,  161 

COITPAHATIVE  TABLE 


Xli 


Edition  of 

Edition  of 

Edition  of 

Edition  of 

1882 

1910 

1882 

1910 

Sections 

Sections 

Sections 

Sections 

177 

163 

227 

197,  218 

178 

164 

228 

199,  220,  221 

179 

165 

229 

197 

180 

166 

230 

197 

181 

167 

231 

222,  233,  234 

182 

169 

232 

222,  224,  226,  230, 

183 

170 

232,  233,  234 

184 

163,  168 

233 

223 

185 

171,  172 

234 

223 

186 

172 

235 

223 

187 

172 

236 

225 

188 

173 

237 

227,  228 

189 

174,  177 

238 

229 

190 

175 

239 

229 

191 

176 

240 

229 

192 

178 

241 

231 

193 

179,  181 

242 

237 

194 

180 

243 

277-288 

195 

178 

244 

238 

196 

182 

245 

239 

197 

183 

246 

240 

198 

183 

247 

241 

199 

183,  187,  188 

248 

242 

200 

184,  186 

249 

243 

201 

185 

250 

244 

202 

183 

251 

245,  247 

203 

189,  191-195 

252 

246 

204 

190 

253 

248,  250,  275,  276 

205 

165 

254 

252,  253 

206 

189 

255 

254 

207 

165 

256 

253 

208 

165 

257 

259 

209 

165 

258 

260 

210 

165 

259 

261 

211 

165 

260 

262 

212 

196-199,  235,  236 

261 

263 

213 

200,  201 

262 

159,  255 

214 

202 

263 

256 

215 

203 

264 

257 

216 

204 

265 

258 

217 

205 

266 

272 

218 

206 

267 

271 

219 

207,  208 

268 

264-266,  270,  273, 

220 

209,  210,  212 

274 

221 

211 

269 

267 

222 

213 

270 

268 

223 

214 

271 

269 

224 

215 

272 

248,  249 

225 

216 

273 

248 

226 

217,  219 

274 

248,  250,  297 

xlii 


COMPARATIVE  TABLE 


Edition  of 

Edition  of 

Edition  of 

Edition  of 

1882 

1910 

1882 

1910 

Sections 

Sections 

Sections 

Sections 

275 

293 

325 

358 

276 

295 

326 

364 

277 

294 

327 

363 

278 

296 

328 

357 

279 

299,  300 

329 

365 

280 

300 

330 

365 

281 

301 

331 

366 

282 

301 

332 

366 

283 

302-304 

333 

367 

284 

251,  278,  307 

334 

368,  369 

285 

307 

335 

370 

286 

279,  308 

336 

370 

287 

284-291,  309-323 

337 

371 

288 

292,  298,  324 

338 

371 

289 

325 

339 

372 

290 

326 

340 

372 

291 

327,  335 

341 

373 

292 

328 

342 

374,  376 

293 

334 

343 

375 

294 

331,  333,  336 

344 

410 

295 

331,  333,  336 

345 

410-412 

296 

339 

346 

413^15 

297 

337,  338 

347 

428 

298 

337 

348 

411 

299 

329 

349 

416 

300 

330,  539 

350 

416 

301 

338,  340 

351 

417,  420 

302 

325,  326  341 

352 

419,  420 

303 

332 

353 

421 

304 

342 

354 

21,  248,  418,  420 

305 

343 

355 

21,  248 

306 

343 

356 

21,  248 

307 

344 

357 

21,  248 

308 

344 

358 

21,  250,  251 

309 

345 

359 

61 

310 

346 

360 

422 

311 

273,  346 

361 

422 

312 

347 

362 

423,  424 

313 

348,  349  351 

363 

424 

314 

349 

364 

424 

315 

349 

365 

422 

316 

349 

366 

425 

317 

349 

367 

426 

318 

349 

368 

426 

319 

352 

369 

426 

320 

353 

370 

426 

321 

354 

371 

427 

322 

354 

372 

427 

323 

353-356,  360-363 

373 

429 

324 

350,  359 

374 

429 

COMPARATIVE  TABLE 


xliii 


Edition  of 

Edition  of 

Edition  of 

Edition  of 

1882 

1910 

1882 

1910 

Sections 

Sections 

Sections 

Sections 

375 

429 

424 

556 

376 

429 

425 

556 

377 

430 

426 

557,  560 

378 

430 

427 

557 

379 

430 

428 

558 

380 

430 

429 

559 

381 

430 

430 

561 

382 

460,  461 

431 

562 

383 

460,  461 

432 

563 

384 

460-462,  472-475, 

433 

564 

477 

434 

565 

385 

463,  464 

435 

565 

386 

471 

436 

566 

387 

471 

437 

495 

388 

465 

438 

495 

389 

466 

439 

519 

390 

467 

440 

515 

391 

468 

441 

517 

392 

469 

442 

518 

393 

470 

443 

513 

394 

476 

444 

514 

395 

476 

445 

516 

396 

476 

446 

521 

397 

476 

447 

522 

398 

482-485 

448 

523 

399 

486 

449 

507,  552,  575 

400 

487 

450 

520 

401 

488 

451 

510 

402 

490 

452 

511 

403 

489 

453 

512 

404 

491 

454 

518 

405 

492^94 

455 

496 

406 

524,  525 

456 

501 

407 

526 

457 

499 

408 

527 

458 

499 

409 

529,  537 

459 

497 

410 

530,  531 

460 

498 

411 

528,  529,  530 

461 

500 

412 

532 

462 

506,  507,  567,  568 

413 

534,  536 

463 

508,  509,  548 

414 

535 

464 

504,  505 

415 

533 

465 

503 

416 

544 

466 

502 

417 

544 

467 

540-543 

418 

544 

468 

546,  547,  550-552 

419 

545 

469 

569,  570 

420 

553,  554 

470 

571 

421 

554 

471 

485,  572 

422 

555 

472 

573,  574 

423 

555 

473 

576 

xliv 


COMPARATIVE   TABLE 


Edition  of 

Edition  of 

Edition  of 

Edition  of 

1882 

1910 

1882 

1910 

Sections 

Sections 

Sections 

Sections 

474 

478 

499 

596 

475 

478 

500 

596 

476 

479 

501 

597,  598 

477 

480 

502 

601 

478 

481 

503 

578-582,  599 

479 

577 

504 

599 

480 

583 

505 

600 

481 

584 

506 

602 

482 

584 

507 

602 

483 

585,  589 

508 

603 

484 

586 

509 

604 

485 

587 

510 

605-607 

486 

587 

511 

538,  608 

487 

588 

512 

609 

488 

590,  591 

513 

610 

489 

591,  592 

514 

611 

490 

591 

515 

612 

491 

593 

516 

612 

492 

594 

517 

613 

493 

594 

518 

614 

494 

594 

519 

614 

495 

595 

520 

615 

496 

595 

521 

616 

497 

593 

522 

617 

498 

593 

ELEMENTARY    LAW 


INTRODUCTION 

1.    Of  Law  in  General. 

La\\^  in  its  widest  sense,  is  a  rule  of  action  prescribed  by  a 
superior  and  which  the  inferior  is  bound  to  obey.  Law,  m  its 
technical  sense,  is  a  rule  of  civil  conduct,  prescribed  by  competent 
political  authority,  commanding  certain  things  as  necessary  to, 
and  forbidding  other  certain  things  as  inconsistent  A\'ith,  the 
peace  and  order  of  society.  Law,  in  its  widest  sense,  includes : 
(1)  The  Eternal  Law,  by  which  the  Supreme  Reason  and  Will 
governs  the  entire  universe;  (2)  The  Natural  Lau\  which  is  the 
manifestation  of  the  Eternal  Law  through  the  attributes  and 
operations  of  created  beings;  (3)  The  Positive  Law,  which  is 
a  rule  prescril)ed  to  rational  creatures  for  the  regulation  of  their 
voluntary  conduct;  (4)  The  Divine  Law,  which  is  the  Positive 
Law  directly  imposed  by  the  Creator  himself  upon  his  rational 
creatures ;  (5)  The  Human  Law,  which  is  the  Positive  Law 
prescribed  by  man  for  his  own  government  or  that  of  other  men ; 
(6)  Law  in  its  technical  or  political  sense,  which  is  the  Human 
Law  imposed  by  sovereign  States  upon  themselves,  or  upon  their 
subjects,  for  the  protection  of  legal  rights  and  the  prevention  or 
redress  of  legal  wrongs.  It  is  to  the  statement  and  explanation  of 
Law,  in  its  political  sense,  that  this  elementary  treatise  is  devoted. 

Remarks.  It  is  of  the  highest  importance  to  the  student  that 
he  should  clearly  understand,  at  the  very  commencement  of  his 
studies,  jjrecisely  what  a  lair,  in  its  technical  sense,  is  and  what  it 
is  not.  A  law  is  not  advice  or  counsel,  to  be  followed  or  rejected 
at  the  option  of  the  hearer.  It  is  not  an  hi/pofhcsis,  suj)j)orted 
by  arguments  and  examples  suggested  to  the  memory  or  observa- 
tion of  the  iiuiuirer.  It  is  not  an  inference,  derived  by  the  in- 
ductive process  from  the  collection  and  comparison  of  many 
individual  cases,  in  which  the  facts  were  more  or  less  similar, 
and  to  which  a  more  or  less  reasonable  and  reliable  doctrine  has 

1 


2  ELEMENTARY  LAW  §  2 

been  applied.  On  the  contrary,  a  law  is  a  definite,  positive, 
practical,  and  practicable  rule,  imposed  by  an  authority  which 
expects  to  be  obeyed  and  to  enforce  obedience  by  penalties 
sufficiently  severe.  It  is  either  a  rule  which  is  promulgated  in 
some  constitution,  treaty,  statute,  or  other  formal  enactment 
where  it  can  be  readily  found,  carefully  studied,  and  accurately 
understood ;  or  it  is  a  rule  which  is  permanently  embodied  and 
preserved  in  some  universally  accepted  definition  or  maxim 
which  is  contained,  asserted,  or  explained  in  an  authoritative 
treatise  or  leading  judicial  decision  of  the  unwritten  law.  Nothing 
less  certain  or  less  imperative  than  such  a  rule  is  in  any  proper 
sense  a  rule  of  law.  The  number  of  these  rules,  though  very 
great,  is  limited,  and  the  whole  number  taken  together,  a^  they 
are  prescribed  and  enforced  in  any  given  place,  at  any  given  time, 
constitute  "  The  Law"  of  that  particular  period  and  locality. 
The  prudent  student  will  concentrate  his  attention  on  these  rules, 
and  endeavor  to  acquire  a  competent  knowledge  and  understand- 
ing of  each  one  of  them,  instead  of  consuming  his  energies  and 
time  on  conjectural  propositions  and  inconclusive  discussions 
which  will  never  make  him  a  true  lawyer,  —  a  "man,  learned  in 
the  law." 

Read:   1  BI.  Com.,  pp.  38-53; 
Rob.  Am.  Jur.,  §§  1-7; 
Wharton,  American  Law,  §§  1,  2,  42-64; 
Barbour,  Rights  of  Persons  and  Property,  pp.  1-4; 
Dwight,  Law  of  Persons  and  Property,  pp.  5-8; 
Walker,  American  Law,  §§  1,  9,  16; 
Andrews,  American  Law,  §§  18-36; 
Clark,  Elementary  Law,  §§  1-4,  27; 
Bishop  on  Contracts  (Early  Ed.),  §§  1-17; 
Benjamin  on  Contracts,  pp.  1-4. 


§  2.   Of  the  Purpose  of  Law:  Legal  Rights:  Legal  Wrongs. 

The  purpose  of  law  is  the  definition  and  assertion  of  legal 
rights ;  and,  as  collateral  thereto,  the  prevention  and  punishment 
of  legal  wrongs.  A  right  is  the  authority,  inherent  in  every  person, 
to  freely  exercise  his  natural  and  acquired  capabilities  within  the 
limits  fixed  by  reason  and  justice.  Rights  exist,  primarily,  by 
virtue  of  the  natural  law,  but  when  recognized  and  protected  by 
the  law  of  the  State  they  become  legal  rights ;  and  the  wrongs  by 
which  they  are  invaded  become  legal  wrongs,  and  demand  and 
receive  redress  through  legal  remedies..  Hence  the  maxim,  "Uhi 
Jus,  ibi  Remedium,"  which  declares  that  legal  right  and  legal 
remedy  are  inseparable. 


§  3  INTRODUCTION  3 

Rem.  A  large  proportion  of  the  capabilities  of  human  beings 
require  a  state  of  society  for  their  exercise  and  enjoyment ;  and 
to  their  exercise  in  society  with  freedom,  reason,  and  justice  it  is 
necessary  that  society  itself  should  be  preserved  in  a  condition 
of  peace  and  order.  This  can  be  accomplished  only  by  laws 
imposed  by  a  supreme  authority  which  can  compel  obedience; 
and  hence  spontaneously  arises  in  all  social  aggregations  some 
system  of  government,  called  "the  State,"  by  which  rules  are 
prescribed  defining  rights  and  providing  for  the  punishment  of 
wrongs.  What  particular  natural  rights  shall  thus  be  asserted 
and  protected  by  the  State,  and  thereby  be  made  legal  rights,  it 
is  for  the  State  itself  to  determine.  Numerous  natural  rights 
never  have  been,  and  perhaps  never  will  be,  made  legal  rights ; 
but  whatever  rights  the  State  does  recognize  it  is  its  duty  to  defend 
and  vindicate  with  all  its  sovereign  powers. 

Read:   Rob.  Am.  Jur.,  §§  119-122,  148; 

Wharton,  American  Law,  §§  4-11,  66-114; 

Dwight,  Law  of  Persons  and  Property,  pp.  1,  2,  4,  8; 

Walker,  American  Law,  §  5; 

Andrews,  American  Law,  §§  1-17,  61-76; 

Clark,  Elementary  Law,  §§  58,  59; 

Benjamin  on  Contracts,  pp.  4-6. 


§  3.    Of  Rights  Public  and  Private:  Public  and  Private  Law. 

Legal  rights  are  divisible  into  Public  Rights  and  Private  Rights. 
Public  Rights  are  those  which  inhere  in  the  State  or  in  its  gov- 
ernmental agents,  or  in  private  persons  as  against  the  State  or  its 
agents.  Private  Rights  are  those  which  reside  in  private  per- 
sons, and  are  assertable  only  against  other  private  individuals. 
Conformable  to  this  division  of  rights  is  the  division  of  law  into 
Public  Law  and  Private  Law.  Public  rights  are  defined  and 
enforced  by  Public  Law.  Private  rights  are  asserted  and  pro- 
tected by  Private  Law. 

Rem.  The  essential  difference  between  a  public  right  and  a 
private  right  is  that  in  the  former  the  interest  and  welfare  of  the 
State  at  large  are  directly  involved,  either  as  the  personality  on 
whose  behalf  the  right  is  a.sserted,  or  as  the  community  against 
whom  the  right  is  maintained.  This  gives  to  a  public  right  a  far 
greater  importance  than  can  ever  attach  to  a  private  right;  and 
hence,  in  every  case  of  collision  between  them,  the  private  right 
always  yields  to  the  public  right,  according  to  the  maxim,  "  Salu* 
Populi  Supretna  Lex." 


ELEMENTARY   LAW  §§  4,  5 

Read:  Rob.  Am.  Jur.,  §§  123,  175; 

Dwight,  Law  of  Persons  and  Property,  pp.  4,  5; 
Clark,  Elementary  Law,  §§  73-80. 


§  4.     Of  International  Law:  National  Law. 

Law  is  also  divided  into  International  Law  and  National  Law. 
International  Law  is  that  rule  of  civil  conduct  which  is  estab- 
lished by  the  common  consent  of  civilized  nations,  to  regulate 
their  intercourse  with  one  another.  National  Law,  called  also 
Municipal  Law,  is  that  rule  of  civil  conduct  which  is  prescribed 
by  the  supreme  power  in  a  particular  State,  and  regulates  the 
intercourse  of  that  State  with  its  subjects  and  of  those  subjects 
with  each  other. 

Rem.  International  Law  is  one  form  of  Public  Law,  and  is  ex- 
pressed in  the  usages  of  nations  and  in  the  treaties  made  between 
them.  It  was  formerly  regarded  as  wanting  one  essential  attribute 
of  law,  in  that  it  could  not  be  enforced  against  a  nation  which  re- 
fused to  obey  it.  In  modern  times  this  defect  has  largely  been  sup- 
plied, and  disobedient  nations  can  now  be  punished  by  exclusion 
from  "the  family  of  nations  "  with  all  its  attendant  disadvantages. 
National  Law  includes  all  Private  Law,  and  some  forms  of 
Public  Law,  such  as  Criminal  Law  and  Constitutional  Law. 

Read:  Rob.  Am.  Jur.,  §§  11,  166,  171,  172; 
Wharton,  American  Law,  §§3,  118-134; 
Walker,  American  Law,  §  3; 
Clark,  Elementary  Law,  §  5. 


§  5.     Of  the  National  Law  of  the  United  States  of  America:   the 
Common  Law. 

The  National  Law  established  in  the  United  States  of  America  is 
derived  mainly  from  the  laws  of  England  as  they  existed  at  the 
time  of  the  American  Revolution.  These  laws  were  brought  to 
this  country  by  the  English  colonists,  and  were  observed  by  them 
as  far  as  seemed  suitable  to  their  new  conditions.  When  the 
colonies  became  independent,  these  laws  were  still  preserved; 
and  to  them  others  were  added,  either  by  new  enactment  or  by 
adoption  from  the  Civil  Law  by  which  the  French  and  Spanish 
colonists  were  governed.  As  the  National  Laws  of  England 
have  long  been  known  as  the  Common  Law,  that  name  is  now 
applied  to  our  own  national  system  also. 


§  6  INTRODUCTION  5 

Rem.  The  term  "Common  Law"  has  various  meanings: 
(1)  It  denotes  the  whole  body  of  hiws  observed  by  English- 
speaking  nations,  and  distinguishes  it  from  the  Roman  or  Civil 
Law  which  prevails  in  Continental  Europe,  in  the  Spanish- 
American  States,  and  in  some  other  portions  of  the  civilized 
world ;  (2)  Li  another  sense,  it  is  a])plied  to  the  English  laws 
recognized  in  this  country  before  the  Revolution,  and  distin- 
guishes them  from  the  laws  which  have  been  enacted  since  the 
Revolution  by  our  individual  States;  (3)  In  quite  a  different 
sense  it  indicates  the  ancient  customary  law  of  England,  and 
distinguishes  it  from  the  additions  made  by  Parliament  and 
other  legislative  bodies,  —  nearly  the  same  distinction  as  that 
expressed  by  the  terms  Wriiien  Law  and  Unwriifm  Lan\' 
(4)  It  also  signifies  the  remedies  and  methods  of  procedure  ad- 
ministered by  the  earliest  English  courts  of  justice,  and  dis- 
tinguishes them  from  those  adopted  by  other  tribunals,  such  as 
courts  of  equity,  courts  of  admiralty,  courts  of  probate,  and  the 
military  courts.  This  equivocal  use  of  the  term  will  at  first  con- 
fuse the  student;  but  he  will  soon  become  accustomed  to  these 
variations  and  will  then  readily  perceive  from  the  context  in 
which  of  these  meanings  the  phrase  is  being  employed. 

Read:  Rob.  Am.  Jur.,  §§  10,  14,  15,  184-190; 

Dillon,  Laws  and  Jurisprudence  of  England  and  America,  pp.  22-27, 

155-157,  .350-38S; 
Barbour,  Riglits  of  Persons  and  Property,  pp.  4-7; 
Walker,  American  Law,  §  2; 
Andrews,  American  Law,  §§  153-158; 
Clark,  Elementary  Law,  §§  31,  32,  34. 

§  6.     Of  the  National  Law  of  the  United  States  of  America :  Mari- 
time Law:  Ecclesiastical  Law. 

Other  elements  entering  into  the  National  Law  of  the  United 
States  are  the  Maritime  Law  and  the  Ecclesiastical  Law.  Mari- 
time Laic  is  that  body  of  rules  which  governs  the  instruments  and 
the  operations  of  commerce  upon  the  high  seas.  This  is  the 
oldest  and  most  universal  of  all  known  systems  of  law,  and  enters 
into  the  National  Law  of  all  civilized  countries  so  far  as  they 
participate  in  maritime  afi'airs.  Ecclesiastical  Law  is  that  body 
of  rules  by  which  religious  associations  regulate  their  internal 
relations  and  the  conduct  of  their  members.  These  rules,  when 
not  regard(>(i  by  the  State  as  hostile  to  its  own  interests  or  its 
sovereignty,  are  recognized  by  it  as  imposing  contract  or  (/liasi 
contract  obligations,  and  are  enforced  by  it  whenever  controver- 
sies involvincT  them  are  submitted  to  its  determination. 


6  ELEMENTARY   LAW  §  7 

Rem.  Still  other  ingredients  than  those  enumerated  in  the 
text  become,  from  time  to  time,  component  parts  of  every  body 
of  National  Law.  Thus  many  rules  of  International  Law,  and 
numerous  provisions  of  the  treaties  between  States,  relate  to  the 
conduct  of  individual  citizens,  and  for  the  purpose  of  carrying 
them  into  practical  effect  are  incorporated  into  the  National 
Laws  of  the  respective  States.  National  Law  is  not,  therefore, 
a  fixed  and  permanent  system,  but  a  system  constantly  enlarg- 
ing in  scope  and  varying  in  detail,  to  meet  the  changes  and 
advancement  of  society. 

Read:  Rob.  Am.  Jur.,  §§  12,  13,  341; 
Wharton,  American  Law,  §  36; 
Walker,  American  Law,  §  18; 
Clark,  Elementary  Law,  §§  6,  7,  29,  33. 


§  7.     Of  Federal  and  State  Law. 

In  the  United  States  of  America  two  sovereignties  exist: 
(1)  That  of  the  United  States  as  a  nation ;  (2)  That  of  the  Indi- 
vidual States  of  which  the  nation  is  composed.  From  each  of  these 
sovereignties  emanate  distinct  systems  of  national  law  which  are 
known  respectively  as  Federal  I^aw  and  State  I^aw.  Federal 
Law  is  that  rule  of  civil  conduct  which  is  prescribed  by  the 
supreme  power  in  the  United  States  considered  as  a  nation, 
and  regulates  in  matters  of  a  national  character  the  intercourse 
of  the  Federal  Government  with  the  people,  and  that  of  the 
people  with  one  another  or  with  the  citizens  of  foreign  States. 
State  Law  is  that  rule  of  civil  conduct  which  is  prescribed  by  the 
supreme  power  in  each  individual  State,  and  regulates,  in  all 
matters  not  of  a  national  character,  the  intercourse  of  that  State 
with  its  own  people  and  of  its  people  among  themselves. 

Rem.  The  line  of  demarcation  between  State  and  Federal 
authority  is  fluctuating  and  uncertain.  Many  matters  are  clearly 
of  a  national  character ;  others  are  evidently  not  so ;  but  between 
these  two  well-defined  extremes  there  is  a  vast  middle  ground 
over  which  it  may  at  any  given  moment  be  doubtful  whether 
State  or  Federal  authority  should  prevail.  Within  this  middle 
ground  either  authority  may  be  exercised  until  the  doubt  is  re- 
moved. During  the  last  fifty  years  the  current  of  events  has 
extended  Federal  jurisdiction  to  many  subjects  once  governed 
by  State  Law,  and  there  is  now  a  general  tendency  to  solve  all 
doubts  in  favor  of  the  Federal  authority. 


§§  8,  9  INTRODUCTION  7 

Read:  Rob.  Am.  Jur.,  §§  179-183; 

Cooley,  Const.  Law,  pp.  33-38,  66-85,  152-159,  182-195; 

Dillon,  Laws  and  Jurisprudence  of  England  and  America,  pp.  216- 

223; 
Rorer,  Interstate  Law,  pp.  1-3,  9-21,  84-86,  336-346. 


§  8.     Of  the  Unwritten  and  the  Written  Law. 

American  National  Law,  like  other  branches  of  the  Common 
Law,  is  also  divisible  into  Unwritten  Law  and  Written  Law. 
Unwritten  Laic,  called  from  its  mode  of  development  the  cus- 
tomary laio,  embraces  those  rules  of  civil  conduct  which  origi- 
nated in  the  common  wisdom  and  experience  of  society,  became 
in  time  established  customs,  and  finally  received  judicial  sanction 
and  affirmance  in  the  decisions  of  the  courts  of  last  resort. 
Written  Law  includes  those  rules  of  civil  conduct  which  have  been 
prescribed  directly,  in  so  many  words,  by  the  supreme  power  of 
the  State  itself. 

Rem.  The  term  "Unwritten  Law  "  does  not  denote  that  this 
division  of  the  law  still  remains  unwritten.  On  the  contrary,  by 
far  the  greater  part  of  legal  literature  is  occupied  with  the  ex- 
pression of  the  Unwritten  Law.  The  real  distinction  is  that  in 
the  Written  Law  not  only  the  mental  concept  of  the  rule,  but  the 
words  also  in  which  it  is  expressed,  are  of  supreme  authority; 
while  in  the  Unwritten  Law  the  concept  is  the  rule  in  whatsoever 
language  it  may  be  declared.  A  rule  of  the  Written  Law,  being 
thus  measured  by  its  words,  is  limited  and  inflexible,  though  at 
the  same  time  more  definite  and  intelligible  than  the  same  rule 
would  be  if  it  remained  unwritten.  Obvious  advantages  attach 
to  each  of  these  modes  of  promulgating  law.  The  Unwritten 
Law  is  better  suited  for  asserting  general  rights  and  duties ;  the 
Written  for  prescribing  methods  of  procedure  or  forbidding 
crimes. 

Read:  1  Bl.  Com.,  pp.  62-64; 

Rob.  Am.  Jur.,  §§214-216,  236-238; 

Wharton,  American  Law,  §  12; 

Clark,  Elementary  Law,  §  28; 

Dwarris  on  Statutes  (Potter  Ed.),  pp.  33-46. 

§  9.     Of  the  Development  of  the  Unwritten  Law. 

Unwritten  Law  is  constantly  developing  by  the  judicial  rec- 
ognition, as  rules  of  law,  of  customs  hitherto  unrecognized.  A 
custom  is  a  usage,  or  habitual  mode  of  action,  adopted  between 


8  ELEMENTARY  LAW  §  9 

related  persons  by  express  or  tacit  agreement,  and  continued  long 
enough  to  be  rightfully  relied  on  by  them  as  a  rule  governing 
their  conduct  in  their  dealings  with  each  other.  When  such  a 
custom  is  violated  to  the  injury  of  either  party,  and  a  legal  con- 
troversy arises  as  to  its  validity,  the  judgment  of  a  competent 
court,  sustaining  and  enforcing  the  custom,  makes  it  the  rule  of 
law  controlling  the  conduct  of  the  parties  in  that  particular  case. 
When  subsequent  controversies  between  the  same  or  other  par- 
ties, involving  precisely  the  same  custom,  are  brought  before 
the  same  court,  or  a  court  of  inferior  authority  in  the  same 
territorial  jurisdiction,  the  docfrine  of  stare  decisis,  which  obliges 
equal  and  inferior  courts  to  follow  the  rulings  of  preceding  and 
superior  tribunals  unless  they  appear  to  be  erroneous,  compels 
a  similar  decision  affirming  the  custom  and  adds  to  its  authority ; 
and  thus  is  gradually  built  up  a  rule  of  law  which  binds  all  courts 
within  that  jurisdiction  until  it  is  reversed  or  modified  by  statute 
or  by  the  judgment  of  a  higher  court.  A  rule  of  law,  thus  devel- 
oped, is  law  only  in  the  State  by  whose  courts  it  is  asserted,  but 
may  be  followed,  amended,  or  repudiated  by  the  courts  of  other 
States  as  they  deem  best;  and  hence  until  adopted  by  all  the 
States  never  becomes  a  general  rule.  Meanwhile  the  cases  in 
which  the  custom  is  stated,  discussed,  rejected,  or  affirmed,  are 
useful  for  argument  and  exposition  wherever  the  same  question 
is  raised,  and  thus  aid  in  the  eventual  establishment  of  a  reason- 
able, universal,  and  permanent  doctrine  of  the  law. 

Rem.  That  a  custom  may  receive  this  judicial  sanction  it 
must  be:  (1)  Immemorial,  —  that  is,  it  must  have  existed  for  a 
sufficient  period  of  time  to  have  become  established  as  a  rule  of 
conduct  in  that  class  of  cases  of  which  it  is  henceforth  to  be 
regarded  as  the  law ;  (2)  Continued,  —  that  is,  it  must  not  have 
been  alternated  with  antagonistic  modes  of  action,  but  must 
have  been  constantly  applied  whenever  any  of  this  class  of  cases 
has  arisen ;  (3)  Peaceable,  —  that  is,  it  must  not  have  been  sub- 
ject to  contention  or  dispute,  but  have  been  accjuiesced  in  by  all 
persons  to  whose  actions  it  pertained ;  (4)  Reasonable,  ■ —  that 
is,  it  must  not  be  opposed  to  any  fundamental  principle  of  justice, 
nor  in  its  practical  operation  be  injurious  to  the  public  or  to  that 
class  of  persons  to  whose  conduct  it  relates ;  (5)  Certain,  — 
that  is,  it  must  not,  either  in  the  rights  which  it  confers  or  in 
the  duties  which  it  imposes,  be  indefinite  and  open  to  conjecture, 
but  must  furnish  to  all  persons  who  are  interested  in  such  cases 


§  10  INTRODUCTION  9 

a  reliable  and  intelligible  rule  of  conduct ;  (6)  Compulsory,  — 
that  is,  its  observance  must  not  have  been  optional  with  individ- 
uals, but  must  have  been  respected  by  those  persons  generally 
to  whose  relations  it  pertains,  as  a  rule  which  in  honesty  and 
good  faith  they  were  under  an  obligation  to  obey;  (7)  Consist- 
ent loith  other  customs,  —  that  is,  it  must  not  limit  or  contradict 
the  observance  of  any  other  judicially  established  custom  of  the 
same  State  by  which  this  class  of  cases  is  already  governed, 
unless  it  is  apparent  that  the  time  has  come  when  such  former 
custom  should  be  modified  or  overruled.  The  customs  and 
usages  thus  presented  to  the  courts  for  judicial  recognition  may 
be  either  general  customs  relating  to  universal  interests  and 
observed  by  all  the  people  of  the  State;  or  particular  customs 
restricted  to  some  special  localities,  classes  of  persons,  objects  of 
property,  or  kinds  of  trade.  At  first  they  are  mere  allegations  to 
be  proved  by  evidence  like  other  matters  of  fact ;  but  when 
once  judicially  recogniz(>d  they  are  cited  from  the  books  like  other 
rules  of  law.  The  bulk  of  all  departments  of  our  law,  such  as 
the  Law  of  Proj)erty,  the  Law  of  Contracts,  the  I^aw  of  Personal 
and  Family  Rights,  has  in  this  manner  gradually  emerged,  in 
the  course  of  ages,  from  human  instincts  and  experience  under 
the  guidance  of  the  Natural  Law;  and  the  sources  which  sup- 
plied it  will  prove  inexhaustible  under  the  pressure  of  all  future 
needs. 

Read:  1  Bl.  Com.,  pp.  G7-79; 
Rob.  Am.  Jur.  §§  217-226; 
2  Greenleaf,  Evidence,  §§  248-252; 
Wharton,  American  Law,  §§  14-36; 
Barbour,  Ri<!;lits  of  Persons  and  Property,  pp.  46-50; 
Walker,  American  Law,  §  18; 
Andrews,  American  Law,  §§  159-167; 
Clark,  Elementary  Law,  §  30; 
Lawson,  Usages  and  Customs,  pp.  1-112; 

Browne,  Usages  and  Customs  (Clarke  Ed.),  §§  1-35,39-42,  68-73, 
79-86,  130,  141. 


i^  10.     Of   the    Expression   of   the   Unwritten   Law   in    Maxims, 
\  Definitions,  and  Judicial  Decisions. 

Unwritten  Law  has  been  expressed  in  maxims,  definitions,  and 
judicial  decisions.  A  maxim  is  a  short  and  formal  statement  of 
some  established  principle  of  law.  Nearly  three  thousand  ol 
these  maxims  now  exist,  many  of  which  are  of  great  anti(|uity, 
and  most  of  which  are  of  the  highest  authority  and  value. 
A  definition  is  an  enumeration  of  the  distinguishing  char- 
acteristics of  the  act,  the  object,  or  the  right  defined.    The  prin- 


10  ELEMENTARY   LAW  §  11 

cipal  definitions  of  the  common  law  are  very  ancient,  and  are  re- 
garded by  the  courts  with  great  respect.  A  judicial  decision  is 
the  adjudication  of  a  competent  court,  in  a  case  within  its  juris- 
diction, upon  some  controverted  rule  of  conduct.  It  may  take  the 
form  of  a  recognition  and  affirmance  of  a  disputed  rule,  or  of  the 
application  of  a  known  rule  to  a  certain  state  of  facts.  In  either 
form  it  is  the  promulgation  of  a  law ;  the  first  form  being  its  simple 
statement  as  a  rule,  the  second  form  indicating  its  practical 
scope  and  obligation.  These  maxims,  definitions,  and  judicial 
decisions  are  now  contained  in  the  Treatises  and  Digests  of  the 
Common  Law,  and  in  those  Reports  of  adjudged  cases  which,  be- 
ginning with  the  "Year  Books"  in  the  reign  of  Edward  II. 
(a.  d.    1324),   have  been   continued  to   the   present  day. 

Rem.  The  maxims  and  definitions  resemble  written  law 
in  that  the  words  in  which  they  are  expressed  are  an  essential 
portion  of  the  rule  and  usually  admit  of  no  equivalents.  The 
definitions  are  not  descriptive  but  prescriptive  definitions,  —  that 
is,  they  determine  the  attributes  of  the  rule  or  thing  defined,  and 
not  merely  describe  them;  and  hence  receive  the  same  exact 
literal  interpretation  which  is  given  to  the  written  law,  although 
they  differ  from  it  in  their  origin,  which  is  custom  or  tradition 
and  not  the  direct  verbal  enactment  of  the  State.  Judicial  de- 
cisions, on  the  other  hand,  are  rarely  expressed  in  accurate  specific 
words;  a  careful  and  laborious  comparison  of  the  facts  from 
which  the  controversy  has  arisen,  and  the  questions  of  law  pre- 
sented thereby,  with  the  ultimate  decision  of  the  court  thereon, 
being  generally  necessary  to  ascertain  the  ratio  decidendi,  or 
conclusion  of  law  at  which  the  judges  have  arrived.  The  rela- 
tion of  the  maxims  to  the  other  forms  of  law  is  illustrated  by 
the  fact  that  on  two  of  them  nearly  all  other  rules  of  law  are 
based.  These  are:  (1)  Salus  Populi  Suprema  Lex,  which  is  the 
foundation  of  the  whole  body  of  Public  Law;  and  (2)  Sic 
Utero  Tuo  ut  Alienum  non  Lcedas,  from  which  most  of  the  rules 
of  Private  Law  have  been  derived. 

Read:  1  Bl.  Com.,  pp.  63-69; 

Rob.  Am.  Jur.,  §§  227-235; 
>^D wight,  Law  of  Persons  and  Property,  pp.  15-28; 

Hughes,  Grounds  and  Rudiments,  §§  1-7L 


^' 


§11.     Of  the  Interpretation  of  the  Unwritten  Law. 

In  order  to  apply  a  rule  of  law  to  practical  affairs  its  meaning 
must  be  ascertained,  and  where  the  words  alone  are  not  entirely 


§  12  INTRODUCTION  11 

clear  a  process  of  interpretation  becomes  necessary  to  deter- 
mine the  scope  and  intended  operation  of  the  rule.  In  the  max- 
ims and  definitions  the  words  are  a  part  of  the  rule ;  and  there- 
fore the  rule  means  what  the  words  mean,  and  the  process  of  in- 
terpretation consists  in  ascertaining  the  signification  of  the 
words.  But  in  judicial  decisions,  Avhere  the  principle  or  precept 
embodied  in  the  words  is  the  object  of  investigation,  and  may  in 
the  decision  under  scrutiny  be  obscurely  or  imperfectly  expressed, 
other  standards  must  be  resorted  to  for  the  solution  of  the  diffi- 
culty. Among  these  the  most  useful  are  the  following :  (1)  Other 
judicial  decisions  of  the  courts  of  the  same  State  upon  the  same 
question ;  (2)  Judicial  decisions  of  the  courts  of  the  same  State 
upon  analogous  questions ;  (3)  Self-evident  principles  of  reason, 
justice,  and  utility;  (4)  The  practical  construction  given  to  the 
rule  by  the  people  whom  it  governs ;  (5)  The  opinions  of  learned 
commentators  upon  the  rule ;  (6)  The  rules  which  regulate  cog- 
nate branches  of  the  law;  (7)  The  doctrines  of  other  States  in 
reference  to  the  same  subject-matter. 

Rem.  It  is  the  function  of  the  courts  to  interpret  those  rules 
of  law  which  apply  to  the  cases  submitted  to  their  judgment; 
and  it  is  the  duty  of  the  counsel  employed  in  such  cases  to  aid 
the  courts  by  preparing  and  presenting  to  them  the  various  con- 
siderations which  shed  light  upon  the  true  meaning  of  the  rule. 
Mere  knowledge  of  the  rules  of  law  is,  therefore,  not  sufficient 
for  the  equipment  of  a  lawyer.  He  must  be  able  to  expound  the 
rule;  to  test  its  difl'erent  possible  meanings  by  the  standards 
above  enumerated ;  and  to  communicate  his  process  of  interpre- 
tation and  its  results  clearly  and  convincingly  to  the  court.  This 
involves  not  merely  the  exercise  of  memory  but  the  highest 
powers  of  research  and  deduction;  and  requires  a  careful  pre- 
vious training  in  logic,  rhetoric,  and  forensic  oratory  which  the 
ambitious  student  will  do  well  not  to  neglect. 

Read:  Rob.  Am.  Jur.,  §§  283-292; 

Robinson,  Forensic  Oratory,  Preface,  §§  142-153; 
Clark,  Elementary  Law,  §§  54,  57; 
Black,  Interpretation  of  Laws,  §§  146-149,  153-161; 
Wambaugh,  Study  of  Cases,  book  i,  chaps,  ii,  ill,  v-viii. 


§  12.     Of  the  Forms  of  Written  Law:  Constitutions. 

Written  Law  is  a  rule  of  civil  conduct  prescribed  in  a  specific 
form  of  words  by  the  legislative  authority  of  the  State.    The  rule 


12  ELEMENTARY   LAW  §  12 

may  have  been  a  rule  of  the  unwritten  law  which  is  now  crystal- 
lized into  a  precise  and  permanent  verbal  expression;  or  it  may 
be  a  rule  which  is  wholly  new  and  is  established  to  meet  some 
novel  social  need.  In  modern  States  written  law  assumes  four 
forms:  (1)  Constitutions;  (2)  Treaties;  (3)  Codes;  and  (4) 
Statutes.  A  Constitution  is  that  organic  law  of  the  State  which 
defines  its  political  powers,  its  form  and  method  of  government, 
and  its  public  rights  and  duties.  It  is  generally  framed  by  a  con- 
vention appointed  for  that  purpose,  and  then  adopted  by  the  whole 
people,  and  may  be  amended  by  a  similar  proceeding.  It  may 
take  effect  at  once  proprio  vigorc,  or  be  carried  into  operation 
by  statutes  which  are  subse(|uently  enacted.  It  is  the  supreme 
law  of  the  State,  and  no  rule  which  is  inconsistent  with  it  can  be 
of  any  force  or  validity. 

Rem.  In  this  country  the  United  States  as  a  nation,  and  also 
every  individual  State,  has  its  own  written  Constitution.  All 
these  constitutions  derive  their  fundamental  principles  from  the 
unwritten  constitution  of  England,  and  are  interpreted  by  the 
Unwritten  Law.  These  constitutions  resemble  one  another  in 
general  contents,  but  vary  in  details  to  suit  the  conditions  of 
their  respective  peoples.  In  one  important  feature  the  Federal 
Constitution  differs  from  the  constitutions  of  the  individual 
States.  The  States  were,  or  were  presumed  to  be,  complete  and 
independent  sovereignties  before  the  adoption  of  their  constitu- 
tions ;  and  hence  their  constitutions  operate  not  to  create  but  as 
a  limitation  of  their  powers.  The  United  States  as  a  nation 
was,  on  the  contrary,  created  by  the  adoption  of  the  Federal 
Constitution,  which  is  for  that  reason  considered  as  a  grant  of 
powers.  An  individual  State,  therefore,  has  all  political  powers 
except  those  of  which  it  is  deprived  by  its  own  constitution 
or  that  of  the  United  States ;  while  the  United  States,  as  a  nation, 
has  no  political  powers  except  those  which  are  conferred  upon 
it,  expressly  or  impliedly,  by  the  Federal  Constitution. 

Read:  Rob.  Am.  Jur.,  §§  239-253; 
Cooley,  Const.  Law,  pp.  3-40; 
Barbour,  Rights  of  Persons  and  Property,  p.  7 ; 
Walker,  American  Law,  §  17; 
Andrews,  American  Law,  §§  171-181; 
Clark,  Elementary  Law,  §§  38-40,  43,  81-84; 
Bishop,  Written  Laws,  §§  1-12,  15,  16; 

Jameson,  Constitutional  Conventions,  §§  63-124,  260,261,267-269, 
272-307,  314-326,  479-488,  496-500,  525-535. 


§§  13,  14  INTRODUCTION  13 

§  13.     Of  the  Forms  of  Written  Law:  Treaties. 

A  treaty  is  a  compact  between  two  or  more  independent  States. 
The  power  to  make  or  break  a  treaty  is  a  necessary  element  of 
sovereignty,  and  it  therefore  binds  the  parties  to  it  only  until  one 
or  the  other  of  them  formally  repudiates  it.  A  treaty  is  usually 
'prepared  and  signed  by  a  joint  commission  of  the  negotiating 
States,  and  is  then  submitted  to  them  for  ratification.  It  takes 
effect  as  to  the  States  from  the  date  of  signature,  and  as  to  private 
persons  from  the  date  of  ratification.  It  may  relate  to  any  matter 
of  international  interest,  whether  political  or  commercial ;  and, 
subject  to  the  constitutions  of  the  signatory  States,  becomes  their 
supreme  law,  overriding  all  other  legislative  enactments.  In  the 
United  States  a  treaty  and  an  Act  of  Congress  are  of  equal  author- 
ity, and  when  one  is  inconsistent  with  the  other  the  latest  must 
prevail. 

Rem.  Treaties  on  behalf  of  the  United  States  are  made  by 
the  President  with  the  concurrence  of  two  thirds  of  the  Senate. 
Such  treaties  arc  a  part  of  the  law  of  every  individual  State, 
and  govern  its  peoj)le  in  all  matters  to  which  the  treaty  relates. 
Treaties  may  be  amended  or  abrogated,  but  are  not  nullified 
by  war  between  the  parties ;  though  upon  their  violation  the 
injured  State  may  refuse  to  perform  its  own  treaty  obligations, 
or  may  retaliate  ujion  the  offending  State,  or  in  extreme  cases 
may  itself  resort  to  war. 

Read:  Rob.  Am.  Jur.,  §§  254-260; 
Cooley,  Const.  Law,  pp.  117,  118; 
Barbour,  Rights  of  Persons  and  Property,  pp.  7-9 ; 
Walker,  American  Law,  §  17; 
Clark,  Elementary  Law,  §  42; 
Bishop,  Written  Laws,  §§  13,  14. 

§  14.     Of  the  Forms  of  Written  Law:  Codes. 

A  code  is  a  f(u-mulatcd  statement  of  the  entire  law  of  a  State,  in 
all  its  details,  as  applicable  to  all  persons  and  to  all  subjects. 
It  issues  from  the  supreme  legislative  authority  in  the  State,  and 
supersedes  and  abolishes  every  former  law.  It  is  intended  by 
its  nature  to  be  permanent  and  final ;  but  whenever  enacted  and 
applied  by  a  progressive  nation  is  soon  added  to  or  modified  by 
custom,  and  thus  again  becomes  associated  with  the  Unwritten 
Law.     Several  famous  codes  have  appeared  in  the  course  of 


14  ELEMENTARY  LAW  §  15 

human  history,  and  the  system  now  has  its  advocates  among 
both  EngUsh  and  American  jurists,  but  as  it  is  opposed  ahke  to 
the  spirit  and  the  practical  operation  of  the  Common  Law  there 
seems  to  be  no  prospect  of  its  general  adoption. 

Rem.  The  principal  codes  of  ancient  and  modern  times  were 
the  following:  (1)  The  Egyptian  Code  (b.  c.  1500,  or  earlier), 
the  probable  source  of  Jewish,  Greek,  and  perhaps  Roman  leg- 
islation; (2)  The  Mosaic  Code  (b.  c.  1490),  found  in  the  Old 
Testament;  (3)  The  Hindoo  Code  (b.  c.  1280),  or  Laws  of 
Menu;  (4)  The  Code  of  Lycurgus  (b.  c.  1100);  (5)  The 
Code  of  Draco  (b.  c.  624) ;  (6)  The  Code  of  Solon  (b.  c.  590) ; 
(7)  The  Roman  Code  of  the  Twelve  Tables  (b.  c.  449) ;  (8)  The 
Theodosian  Code  (a.  d.  438) ;  (9)  The  Code  of  Justinian 
(a.  d.  529) ;  (10)  The  Gothic  Code  of  Alaric  (a.  d.  481) ;  (11) 
The  Salic  Law  (date  unknown) ;  (12)  The  French  Code  of 
Marillac  (a.  d.  1629);  (13)  The  Code  of  Louis  XIV.  (a.  d. 
1685);  (14)  The  Code  of  Louis  XV.  (a.  d.  1774);  (15)  The 
Code  Napoleon  (a.  d.  1808).  Other  ancient  codes  probably 
exist,  as  yet  undiscovered,  among  the  monuments  of  oriental 
civilization.  In  this  country  the  name  "Code"  is  sometimes 
applied  to  codifications  of  particular  departments  of  law,  — 
such  as  Code  Pleading,  Code  Procedure,  the  Criminal  Code, 
etc. 

Read:  Rob.  Am.  Jur.,  §§261,  262; 

Dillon,  Laws  and  Jurisprudence  of  England  and  America,  pp.  179- 

183,  256-260,  342,  343; 
Walker,  American  Law,  §  19. 

§  15.     Of  the  Forms  of  Written  Law:  Statutes. 

A  statute  is  a  formulated  statement  of  some  specific  rule,  gov- 
erning some  particular  objects,  acts,  or  persons.  The  name  in- 
cludes not  only  the  enactments  of  the  supreme  legislative  body, 
but  also  the  ordinances  of  municipal  corporations,  the  regula- 
tions prescribed  by  the  heads  of  executive  departments,  and  the 
formal  rules  of  practice  established  by  the  courts.  The  validity 
of  a  statute  depends  upon  the  authority  of  the  legislative  body 
to  prescribe  it,  as  determined  by  constitutions,  treaties,  and  other 
superior  laws,  and  upon  its  enactment  according  to  the  required 
forms  of  legislative  action.  It  generally  takes  effect  from  the 
date  of  its  passage,  unless  some  other  date  is  fixed  by  law ;  and 
continues  in  force  until  it  expires  by  its  own  limitation,  or  is  sus- 
pended or  repealed  by  the  body  which  enacted  it.    A  statute  may 


^  16  INTRODUCTION  15 

be  repealed  by  the  express  words  or  by  the  necessary  Umitations 
of  a  later  statute.  The  repeal  may  be  total  or  partial  according 
to  the  scope  of  the  repealing  statute,  and  so  much  of  the  old  law 
will  remain  in  force  as  is  consistent  with  the  provisions  of  the 
new.  When  a  repealing  statute  is  itself  repealed,  the  old  law  will 
revive  unless  a  contrary  intention  of  the  legislature  is  apparent, 
or  the  old  law  would  be  in  conflict  with  other  subsequent 
enactments. 

Rem.  A  statute  may  contain:  (1)  The  Title,  —  which  speci- 
fies to  what  class  or  general  body  of  rules  the  statute  belongs; 
(2)  The  Preamble,  —  or  recital  of  the  circumstances  which 
prompted  the  legislative  body  to  enact  the  statute;  (3)  The 
Enacting  Clause,  —  which  sets  forth  the  rule  prescribed ; 
(4)  The  Provisos,  —  which  are  (|ualifications  grafted  upon  the 
enacting  clause,  taking  some  special  matter  out  of  its  operation 
and  making  a  different  rule  concerning  it;  (5)  The  Exceptions, 
—  or  limitations  attached  to  the  enacting  clause,  preventing  it 
from  operating  on  some  matter  which  it  would  otherwise  in- 
clude. An  enacting  clause  is  essential  to  every  statute;  the 
other  parts  are  used  when  necessary  to  express  its  exact  meaning. 
The  constitutions  of  some  States  require  that  every  statute  shall 
have  a  title  which  shall  designate  but  one  subject,  to  which  all 
the  provisions  of  the  enacting  clause  shall  be  confined.  The 
object  of  this  rule  is  to  prevent  confusion  in  the  interpretation 
and  application  of  the  statute,  as  well  as  fraud  in  its  original 
enactment. 

Read:  Rob.  Am.  Jur.,  §§  263-267,  274-282; 
Cooley,  Const.  Law,  pp.  390-392; 
Wharton,  American  Law,  §§  13,  602; 

Barbour,  Rights  of  Persons  and  Property,  pp.  23-33,  43-46; 
D\\'ig;ht,  Law  of  Persons  and  Property,  pp.  28,  39-43; 
Walker,  American  Law,  §  17; 
Clark,  Elementary  Law,  §§  41,  44—47; 
Bishop,  Written  Laws,  §§  17-41,  43-67,  147-187; 
Dwarris  on  Statutes,  (Potter  Ed.)  pp.  58-67,  76-120,  153-160; 
Sutherland  on  Statutes  (Lewis  Ed.),  §§  1-188,  238,  244-295,  296- 
308,  339-357. 

§  16.     Of  the  Forms  of  Written  Law:  Classes  of  Statutes. 

Statutes  are  divisible  into  several  classes:  (1)  Declaratory 
Statutes,  which  are  intended  to  remove  a  doubt  as  to  the  exist- 
ence or  meaning  of  some  former  law,  or  to  carry  into  effect  some 
provision  of  a  constitution  or  a  treaty;    (2)  Remedial  Statutes, 


16  ELEMENTARY   LAW  §  16 

which  enlarge  or  restrain  the  operation  of  a  former  law,  or  pre- 
scribe a  law  altogether  new;  (3)  Affirrnative  Statutes,  which  are 
remedial  statutes  affirming  a  new  rule  without  prohibiting  the 
observance  of  the  old ;  (4)  Negative  Statutes,  wliich  repeal  the 
former  law,  and  establish  in  its  place  a  dift'erent  rule ;  (5)  Public 
Statutes,  which  relate  to  the  government,  or  the  public  interest, 
or  to  all  persons,  or  to  the  entire  number  of  any  group  of  persons ; 
(0)  Private  Statutes,  which  relate  only  to  a  single  person,  or  to  a 
few  persons  of  a  class,  and  have  no  special  reference  to  the  com- 
munity at  large ;  (7)  General  Statutes,  which  are  in  force  through- 
out the  whole  territory  which  is  governed  by  the  State ;  (8)  Local 
Statutes,  which  relate  only  to  the  persons  or  property  within  a 
limited  area;  (9)  Perpetual  Statutes,  which  have  no  predeter- 
mined period  of  duration ;  (10)  Temporary  Statutes,  whose  con- 
tinuance as  law  is  limited  either  by  their  express  language,  or  by 
the  nature  of  the  subjects  to  which  they  relate;  (11)  Mandatory 
Statutes,  which  command  that  certain  things  shall  be  done  or 
forborne;  (12)  Directory  Statutes,  which  point  out  methods  in 
which  legal  acts  may  be  performed  but  do  not  oblige  persons  to 
follow  them,  thus  leaving  every  one  at  liberty  to  adopt  previously 
existing  methods,  if  he  prefers  them;  (13)  Prospective  Statutes, 
which  contemplate  only  the  future,  and  command  or  direct  what 
is  thereafter  to  be  done  or  forborne ;  (14)  Retrospective  Statutes, 
which  change  the  legal  conditions  resulting  from  past  acts  or 
forbearances,  —  either  depriving  parties  of  benefits,  or  relieving 
them  from  obligations,  which  existed  under  former  laws;  (15) 
Penal  Statutes,  which  impose  a  penalty  in  favor  of  the  public 
upon  persons  who  are  guilty  of  public  wrong. 

Rem.  These  classes  of  statutes  differ  from  one  another  not 
only  in  the  essential  characteristics  expressed  in  their  definitions, 
but  in  many  details  of  interpretation  and  application,  "^fhus,  in 
case  of  doubt  statutes  are  presumed  to  be  remedial  rather  than 
penal ;  affirmative  rather  than  negative ;  public  rather  than  pri- 
vate ;  general  rather  than  local ;  perpetual  rather  than  temporary  ; 
directory  rather  than  mandatory ;  prospective  rather  than  retro- 
spective. Moreover,  the  courts  take  judicial  notice  of  public 
statutes,  while  private  statutes  must  be  pleaded  and  proved. 

Read:  1  Bl.  Com.,  pp.  86,  87; 
Rob.  Am.  Jur.,  §§  268-273; 
Wharton,  American  Law,  §§  598-601; 


§  17  INTRODUCTION  17 

Barbour,  Rights  of  Persons  and  Property,  pp.  9-12 ; 
Dwight,  Law  of  Persons  and  Property,  pp.  29,  54,  55; 
Clark,  Elementary  Law,  §§  48-53; 
Bishop,  Written  Law-,  §§  42-42  e,  254-256; 
Dwarris  on  Statutes  (Potter  Ed.),  pp.  52-58,  68-76,  164-168; 
*,      Sutherland  on  Statutes  (Lewis  Ed.),  §§  189-203,  229-231,  324-339. 

WT.1.  Of  the  Interpretation  of  the  Written  Law. 
\  Written  Law  in  interpreted  by  ascertaining  the  meaning  of  the 
words  in  which  it  is  expressed,  since  these  words,  when  properly 
interpreted,  constitute  the  law.  Where,  therefore,  the  words 
have  no  meaning  there  is  no  law ;  and  where  the  words  are  clear 
the  law  is  clear,  and  requires  no  further  interpretation.  But  when 
the  words  are  capable  of  two  or  more  meanings  they  are  not  of 
themselves  sufficient,  and  further  interpretation  becomes  neces- 
sary in  order  to  determine  which  meaning  is  the  law.  To  ascer- 
tain tliis  meaning  the  following  rules  are  to  be  observed:  (1) 
Words  are  to  be  taken  in  their  ordinary  popular  meaning  at  the 
time  of  the  enactment  of  the  law,  unless  they  are  words  peculiar 
to  some  science,  art,  or  trade,  or  are  evidently  here  used  in  some 
special  sense,  and  then  they  are  to  have  their  technical  or 
peculiar  meaning;  (2)  Words  of  obscure  meaning  may  be  made 
clear  by  comparing  them  with  the  context  of  the  same  statute,  or 
with  its  title,  preamble,  provisos  or  punctuation,  or  with  other 
statutes  or  legal  rules  in  pari  materia  relating  to  the  same  sub- 
ject; (3)  Words  m^y  be  interpreted  by  examining  judicial  deci- 
sions in  which  they  have  been  practically  applied,  or  by  the 
conduct  of  those  who  have  endeavored  to  obey  tliem,  or  by  the 
general  opinion  of  tiie  people  as  to  their  legal  effect,  or  by  the 
apparent  intention  of  the  legislative  body  in  selecting  them  to 
exj)ress  tiie  law;  (4)  Certain  classes  of  laws  must  be  strictly  in- 
terpreted by  confining  their  meaning  and  operation  to  the  neces- 
sary significatioti  of  the  words,  to  wit,  —  a.  Penal  Laws ;  b.  Laws 
entailing  forfeitures  or  penalties-,  c.  Laws  in  derogation  of  cus- 
tomary rights,  or  of  rights  existing  under  the  Unwritten  Law; 
d.  Laws  conferring  police  powers;  e.  Laws  exempting  particu- 
lar persons  from  general  ol)ligations,  or  imposing  special  obli- 
gations on  particular  persons;  /.  Laws  of  taxation  or  eminent 
domain;  g.  Laws  creating  monopolies  or  other  exclusive  privi- 
leges;   h.  Laws  delegating  or  susjx'uding  governmental  powers; 


18  ELEMENTARY   LAW  §  18 

i.  Laws  conferring  the  right  to  sue  the  State;  j.  Laws  creating 
new  remedies,  or  affecting  the  customary  jurisdiction  of  the 
courts ;  k.  Retrospective  laws ;  /.  Laws  repeahng  previous  laws ; 
m.  Laws  enacted  to  promote  a  private  interest;  n.  Provisos  re- 
stricting the  enacting  clauses  of  remedial  statutes;  (5)  Reme- 
dial laws  are  to  be  liberally  interpreted  in  order  to  give  them  their 
full  force  and  effect  in  the  promotion  of  the  public  welfare. 

Rem.  Subordinate  to  these  principal  rules  of  interpretation 
are  many  others  to  which  the  courts,  when  necessary,  may  resort 
for  the  correction  or  elimination  of  erroneous  words,  for  the 
supply  of  intended  but  omitted  words,  for  the  restriction  of  too 
general  words,  for  the  extension  of  too  limited  words,  and  for 
the  substitution  of  proper  for  improper  words.  When  once  a 
rule  of  the  Written  Law  has  been  judicially  interpreted  the 
interpretation  becomes  binding  upon  future  causes  arising  under 
the  rule  in  the  same  State,  until  the  previous  interpretation  has 
been  formally  repudiated. 

Read:  1  BI.  Com.,  pp.  87-91; 
Rob.  Am.  Jur.,  §§  293-303; 
Black,  Interpretation  of  Laws,  §§  7-69,  74-93,  100-122,  130-138, 

142-145; 
Wharton,  American  Law,  §§  604-630; 

Barbour,  Rights  of  Persons  and  Property,  pp.  12-16,  33-43; 
Dwight,  Law  of  Persons  and  Property,  pp.  29-39; 
Clark,  Elementary  Law,  §§  55,  56; 
Bishop,  Written  Laws,  §§  68-146,  188-253; 
Dwarris  on  Statutes  (Potter  Ed.),  pp.  47-51,  121-146; 
Sutli©ri«nd  on  Statutes  (Lewis  Ed.),  §§  358-640,  678-720. 


Of  the  Territorial  Jurisdiction  of  Laws:  Conflict  of  Laws. 

The  political  authority  of  a  State  extends  only  to  its  own  terri- 
tory, and  within  that  territory  is  exclusive  of  all  other  similar 
authority.  Nevertheless,  conditions  created  by  the  migration  of 
people  from  one  State  to  another,  or  by  the  political  or  commer- 
cial relations  which  unite  the  inhabitants  of  different  States, 
compel  one  State  to  recognize  and  sometimes  to  enforce  the  laws 
of  other  States,  by  virtue  of  that  comity  of  States  without  which 
international  intercourse  would  be  impossible.  The  principal 
occasion  for  the  exercise  of  comity  occurs  when  suits  are 
brought  in  one  State  which  involve  rights,  capacities,  or  obliga- 
tions arising  under  the  laws  of  other  States.     In  such  cases 


§  18  INTRODUCTION  19 

the  law  of  the  State  in  which  the  suit  is  brought  is  called  the 
"Lex  Fori,"  and  by  this  law  all  matters  pertaining  to  the 
conduct  of  the  suit  itself  are  governed.  The  other  laws  which 
may  be  recognized  and  enforced  are;  (1)  The  Lex  Ligeantiae, 
or  law  of  allegiance  of  one  or  more  of  the  parties  to  the 
suit,  by  which  various  questions  as  to  liis  legal  capacity  are 
determined;  (2)  The  Lex  Domicilii,  or  law  of  his  domicile,  by 
which  questions  as  to  his  personal  powers  and  responsibilities, 
his  rights  in  movable  property,  and  his  domestic  relationships  are 
usually  controlled;  (3)  The  Lex  Rei  Sitce,  or  law  of  the  place 
where  some  object  in  controversy  is  situated,  by  which  immov- 
able property  and  all  rights  therein  are  governed;  (4)  The  Lex 
Loci  Actus,  or  law  of  the  place  where  some  action  has  been  per- 
formed, by  which  the  legality  or  illegality  of  the  act,  and  its 
general  legal  effect,  are  ascertained  ;  (5)  The  Lex  Loci  Con- 
tractus, or  law  of  the  place  where  the  contract  in  controversy  was 
made,  by  which  the  form,  interpretation,  and  validity  of  that 
contract  are  decided;  (())  The  Lex  Loci  Solutionis,  or  law  of 
the  place  where  the  contract  in  controversy  was  to  be  performed, 
by  which  questions  as  to  the  obligations  and  fulfilment  of  that 
contract  are  settled ;  (7)  The  Lex  Loci  Pacti,  or  law  of  the  place 
which  the  parties  have  voluntarily  adopted  by  agreement  as  the 
standard  of  their  rights  and  duties,  and  according  to  which, 
therefore,  their  reciprocal  obligations  will  be  measured.  Either 
of  these  laws  may  be  substituted  for  the  Lex  Fori,  and  applied 
in  its  stead,  whenever  justice  and  the  public  policy  of  the  State 
of  the  forum  will  permit. 

Rem.  Every  State  is  its  own  judge  as  to  the  extent  of  its  comity 
toward  the  laws  of  other  States,  and  may  enlarge  or  restrict  its 
concessions  at  its  pleasure.  Ordinarily,  no  State  will  recognize 
foreign  laws  which  are  contrary  to  its  standard  of  good  morals, 
or  its  general  ideas  of  public  policy;  but  other  laws,  however 
different  in  spirit  and  in  detail  from  its  own,  are  usually  accepted 
and  enforced  unless  they  relate  to  the  prosecution  and  punish- 
ment of  crime.  On  account  of  the  legal  collisions  which  are 
presented  in  such  cases,  and  are  avoided  by  these  concessions, 
the  doctrines  on  this  subject  are  frequently  grouped  under  the 
name  of  "  The  Co7iflirt  of  Laws."  Because  these  conflicting  laws 
are  prescribed  by  distinct  nations,  and  usually  pertain  to  private 
interests,  they  are  sometimes  discussed  as  "Private  Interna' 
tional  Law." 


20  ELEMENTARY   LAW  §  19 

Read:  Rob.  Am.  Jur.,  §§  191-203; 

Wharton,  American  Law,  §§  2G 1-357; 

Walker,  American  Law,  §§  23,  303-30S; 

Story,  Conflict  of  Laws,  §§  1-25,  33,  34,  38,  40-49,  51,  64-66,  69,  73, 

93,  99-106,  108-113,  201,  202,  242,  263,  266,  270,  272,  376,  377, 

382-385,  395,  396,  399,  424,  430,  431,  435,  447,  463,  465,  474, 

481,  483; 
Wharton,  Conflict  of  Laws,  §§  l-4h,  272-333,  353,  359-368,  372, 

373,  393-404,  410-412,  415  a,  418-424,  427  /i-427  s,  428  a,  439  a, 

447  a,  467  a,  478  c,  554-587; 
Rorer,  Interstate  Law,  pp.  4-8,  45-53,  148-155,  167-170; 
Barbour,  Rights  of  Persons  and  Property,  pp.  762,  763,  764-766. 


^.     Of  the  Effect  of  Changes  in  the  Law. 

In  the  laws  of  every  nation  cJiangcs  brcome  inevitable  by  the 
repeal  or  modification  of  the  old  law  or  by  the  substitution  or 
addition  of  the  new.  The  effect  of  these  changes  upon  the  rights 
and  duties  of  persons,  and  upon  the  legal  character  of  acts  and 
things,  is  governed  by  the  following  rules :  (1)  Transactions  com- 
menced and  completed  during  the  existence  of  a  law  remain  valid 
and  unchanged  in  spite  of  any  alteration  in  the  law ;  (2)  Trans- 
actions commenced  but  not  completed  during  the  existence  of  a  law 
vary  with  the  changes  in  the  law,  and  are  governed  by  the  law 
which  is  in  force  at  their  completion;  (3)  Transactions  invalid 
under  the  law  in  force  at  their  completion,  on  account  of  some 
merely  formal  defect,  may  he  made  valid  by  a  later  law ;  (4)  The 
incidental  consequences  of  a  past  and  valid  transaction  change  as 
the  law  changes;  (5)  Vested  rights  of  property  are  not  affected 
by  changes  in  the  law,  but  expectant  and  contingent  rights  are 
destroyed  or  modified  with  the  alterations  in  the  law  under  which 
they  have  arisen ;  (6)  The  obligations  of  a  valid  contract  cannot 
be  impaired  by  any  subsequent  legislative  act;  (7)  Ex  post 
facto  enactments   are  invalid. 

Rem.  Thus,  under  the  first  rule,  a  marriage  valid  at  the  time 
of  its  occurrence  is  always  valid ;  if  defective  in  form  only  it  may, 
under  the  third  rule,  be  made  valid  by  a  subsequent  law ;  if  be- 
tween the  promise  to  marry  and  the  actual  marriage  the  law 
changes,  the  validity  of  the  marriage  is  governed,  under  the 
second  rule,  by  the  later  law ;  the  incidental  consequences  arising 
from  the  marriage,  such  as  the  right  to  dower  or  to  the  custody 
of  children,  vary  under  the  fourth  rule  with  the  changes  in  the 
law.  A  vested  right  is  one  which  exists  in  a  definite  person,  and 
now  entitles  him  to  possess  and  enjoy  some  object  either  at  once 


§  20  INTRODUCTION  21 

or  in  the  future.  An  expectant  right  is  one  which  though  not  now 
residing  in  a  definite  person,  will  if  the  law  continues  unchanged 
eventually  vest  in  him.  A  continrjent  right  is  one  which  does  not 
now,  and  except  in  certain  future  contingencies  never  will,  vest 
in  the  particular  person  under  consideration.  Thus  the  owner  of 
land  has  a  vested  right;  his  heir  at  law  has  an  expectant  right; 
the  person  who  will  have  the  land,  if  there  should  be  no  heirs, 
has  a  contingent  right.  The  obligation  of  a  contract  includes  the 
duty  to  perform  the  contract,  and  the  duty  to  pay  damages  in 
case  it  is  not  performed.  An  ex  post  facto  law  is  a  law  which 
makes  an  innocent  past  act  a  crime ;  or  increases  the  guilt  or  the 
penalty  of  a  past  crime ;  or  puts  the  criminal  to  a  legal  disadvan- 
tage which  did  not  exist  at  the  time  the  crime  was  committed. 
Read:  Rob.  Am.  Jur.,  §§  20-1-210; 

Cooley,  Const.  Law,  pp.  312-314,  328-363; 

Cooley,  Const.  Lim.,  pp.  264-294,  369-389; 

Barbour,  Rights  of  Persons  and  Property,  pp.  763,  764; 

Sutherland  on  Statutes  (Lewis  Ed.),  §§  283,  284,  641-677. 


§  20!     Of  the  Proof  of  Laws. 

All  persons  are  conclusively  presumed  to  know  the  Unwritten 
Law  and  the  public  statutes  of  the  State  in  which  they  live. 
Hence  judges,  and  other  officers  engaged  in  the  administration  of 
the  law,  are  said  to  take  judicial  notice  of  its  provisions ;  and  in 
controversies  carried  on  before  the  courts  such  laws  require  no 
proof.  Private  statutes,  on  the  other  hand,  and  the  laws  of  foreign 
States  must  be  alleged  and  proved  like  other  matters  of  fact. 
Such  proof  may  be  afforded  by  the  testimony  of  persons  learned 
in  the  law,  or  by  authenticated  copies  of  the  laws  themselves. 

Rem.  Matters  ^athin  the  common  knowledge  of  the  people 
at  large  may  well  be  sujiposed  to  be  known  to  persons  whose  duty 
it  is  to  interpret  and  api)ly  the  law ;  and  to  present  evidence  in  ref- 
erence to  such  matters  would  involve  unnecessary  trouble  and 
expense.  Conseriucntly,  in  all  legal  proceedings  they  are  con- 
sidered as  already  before  the  court,  and  persons  interested  in 
them  are  expected  to  refresh  their  recollection  concerning  them 
in  any  ordinary  method.  This  is  the  meaning  of  the  rule  retjuir- 
ing  officers  to  take  judicial  notice  of  them,  which  is  a  rule  relating 
to  the  production  of  testimony  and  forms  a  part  of  the  Law  of 
Evidence  and  Procedure. 

Read:  Rob.  Am.  .lur.,  §§  211-213; 

1  Greciiloaf,  Evidence,  §§  4-6; 

Rorer,  Interstate  Law,  pp.  110-123; 

Sutherland  on  Statutes  (Lewis  Ed.),  §§  309-323. 


22  ELEMENTARY   LAW  §  21 

§  21.     Of  the  Practical  Application  of  Law. 

The  rules  of  law  are  applied  to  practical  affairs  through  various 
agencies,  of  which  the  most  prominent  are  the  courts  of  justice. 
Courts  are  tribunals  in  which  controversies  concerning  the  mean- 
ing and  effect  of  rules  of  law  are  determined,  and  by  which  the 
rules  themselves  are  enforced.  Courts  in  this  country  are  of 
numerous  classes,  and  of  different  grades  of  authority  and  juris- 
diction. Every  State  has  its  own  local  system  of  tribunals,  and 
the  United  States  as  a  nation  has  another  system,  territorially 
coextensive  with  all  the  States  but  taking  cognizance  of  contro- 
versies not  within  the  ordinary  jurisdiction  of  the  local  courts. 
Each  of  these  systems,  whether  State  or  Federal,  has  at  its  head 
a  Supreme  Court,  by  which  the  decisions  of  inferior  courts  may 
be  reviewed,  and  the  precise  limits  of  the  rules  of  law  may  be 
finally  determined.  The  inferior  courts  range  from  thence 
downward,  through  various  ranks  of  dignity  and  power,  to 
the  petty  tribunals  of  a  local  municipality  or  justice  of  the 
peace. 

Rem.  Other  agencies  engaged  in  the  application  of  the  law 
are  the  people  who  spontaneously  obey  it,  and  the  legislative 
bodies  and  executive  officers  who  formulate  and  administer  it. 
The  operation  of  these  agencies  is  not  invoked  by  controversies, 
like  that  of  the  courts,  though  it  frequently  gives  rise  to  contro- 
versies which  the  courts  alone  can  determine.  The  classifi- 
cation of  courts  is  based  sometimes  on  the  subjects  over  which 
they  exercise  jurisdiction,  —  as  into  Civil  Courts,  which  take 
cognizance  of  controversies  between  private  persons ;  and  Crim- 
inal Courts,  before  which  parties  are  prosecuted  by  the  State  for 
crime.  Another  classification  is  derived  from  the  modes  of  proce- 
dure, —  like  that  between  Courts  of  Common  Law,  in  which  the 
causes  are  conducted  according  to  the  ancient  forms  of  the  Eng- 
lish customary  law ;  the  Courts  of  Equity,  where  a  much  simpler 
and  in  many  cases  a  more  effective  method  is  observed;  the 
Courts  of  Admiralty,  where  modes  better  adapted  to  maritime  liti- 
gation are  pursued ;  and  the  Courts  of  Probate,  where  proceed- 
ings, partly  judicial,  partly  commercial,  are  applied  to  the  settle- 
ment of  estates.  Other  classifications  are  founded  on  the  amount 
involved  in  the  controversy,  or  on  the  territorial  area  within  the 
jurisdiction  of  the  court,  or  on  the  conclusiveness  of  its  decisions. 
Every  State  adopts  its  own  grades  of  classification  for  its  courts, 
and  gives  them  such  names  as  it  chooses.  The  Courts  of  the 
United  States  are:    (1)  The  Supreme  Court;    (2)  The  Circuit 


§  22  INTRODUCTION  23 

Court  of  Appeals;  (3)  The  Circuit  Courts;  (4)  The  District 
Courts;  (5)  The  Court  of  Claims;  and  (6)  The  Courts  of  the 
District  of  Columbia  and  the  Territorial  Courts. 

Read:  Rob.  Am.  Jur.,  §§  304,  352-364; 
Andrews,  American  Law,  §§  642,  643; 
Clark,  Elementary  Law,  §§  248-264; 
Rorer,  Interstate  Law,  pp.  28-44. 


§  22.     Of  Persons :  Natural  Persons :  Artificial  Persons. 

Laws  proceed  from  and  are  directed  to  persons ;  rights  inhere 
in  and  impose  duties  upon  persons;  and  hence  the  definition  of 
the  word  "person"  expresses  one  of  the  primary  and  fundamen- 
tal conceptions  of  the  law.  A  person  is  a  being  capable  of  self- 
determination  ;  a  being  endowed  with  reason  and  free-will ;  and 
thereby  distinguished  both  from  inanimate  objects  and  from 
irrational  animals.  Persons,  thus  defined,  are  of  two  classes,  — 
Natural  and  Artificial.  A  natural  person  is  an  individual  human 
being.  An  artificial  person  is  a  natural  person,  or  a  group  of 
natural  persons,  upon  whom  the  State  has  conferred  an  artificial 
personality  in  order  to  enable  it  to  perform  acts  or  enjoy  privi- 
leges which  to  merely  natural  persons  might  be  impossible.  An 
artificial  person  is  more  frequently  called  a  "Corporation." 

Rem.  Every  person,  natural  or  artificial,  has  in  the  eye  of  the 
law  three  attributes  in  addition  to  those  which  are  included  in  the 
personaHty  itself.  These  are:  (1)  A  Name;  (2)  A  Status;  and 
(3)  A  Domicile.  For  most  legal  purposes  the  name  is  the  per- 
son, and  until  the  contrary  is  shown  the  identity  of  the  person  is 
presumed  from  the  identity  of  name.  Names  are  usually  identi- 
cal when  they  have  the  same  sound,  however  they  may  be  spelled ; 
but  in  authoritative  written  documents  the  spelling  is  some- 
times regarded  as  determining  the  name.  The  name  of  a  natural 
person  generally  consists  of  a  Christian  name  and  surname,  and 
may  be  given  him  by  his  parents,  or  adopted  by  himself,  or  be- 
stowed on  him  by  the  law.  The  name  of  an  artificial  person  is 
fixed  by  the  State  when  creating  it.  The  .ftatus  of  a  person  is  his 
legal  condition,  as  the  State  contemplates  it  when  prescribing  the 
law  by  which  he  is  to  be  governed,  and  in  view  of  which  it  defines 
his  rights  and  prescribes  his  duties.  The  status  of  all  sane  adults 
who  are  free  from  external  coercion  is  practically  the  same ;  and 
since  these  constitute  the  great  body  of  the  people  in  a  State  the 
general  laws  are  made  to  suit  their  condition,  and  their  status  is 
said  to  be  normal.    The  status  of  persons  for  whom  exceptional 


24  ELEMENTARY  LAW  §  23 

laws,  or  exemptions  from  general  laws,  must  in  ji:stice  be  made 
is  called  abnormal.  Natural  persons  of  abnormal  status  are: 
a.  Infants;  b.  Insane  Persons.;  c.  Persons  under  Coercion  or 
Duress;  d.  Married  Women;  e.  Public  Officers;  /.  Aliens; 
g.  Indians;  and  h.  Slaves.  The  status  of  artificial  persons  is 
always  abnormal.  The  domicile  of  a  person  is  that  particular 
locality  where  he  has  his  legal  home,  and  by  whose  laws  his 
political  and  many  of  his  personal  rights  are  governed.  The 
domicile  of  a  natural  person  usually  follows  that  of  his  father; 
of  a  married  woman  that  of  her  husband.  A  person  of  normal 
status  may  change  his  domicile  by  removing  to  a  different  locality 
with  the  intention  to  make  it  his  legal  home.  The  domicile  of  an 
artificial  person  is  the  State  by  whose  act  it  was  created. 

Read:  Rob.  Am.  Jur.,  §§  16-70,  77-79; 

Wharton,  American  Law,  §§  254-260; 

Barbour,  Rights  of  Persons  and  Property,  pp.  56-86; 

Dwight,  Law  of  Persons  and  Property,  pp.  2,  3,  119-140,  284-312; 

Walker,  American  Law,  §  20; 

Andrews,  American  Law,  §§  37-60; 

Clark,  Elementary  Law,  §§  60,  61,  176-188; 

Wharton,  Conflict  of  Laws,  §§  20-91,  105; 

Jacobs,  Law  of  Domicile,  §§  25-59,  65,  70-78,  104,  105,  121-125, 
134,  135,  137-143,  150-154,  161,  162,  175,  177,  179-188,  201,  204, 
208,  209,  214,  215,  222,  229,  235,  238,  244  a-249,  260,  264  325, 
362-366,  401,  402; 

2  Greenleaf,  Evidence,  §§  278  a-278  /i,  301,  302,  362-374. 


§  23.  Of  the  Distinguishing  Characteristics  of  Artificial  Persons. 
An  artificial  person,  or  corporation,  is  distinguished  from  a 
natural  person  by  four  essential  attributes:  (1)  It  comes  into 
existence,  or  ceases  to  exist,  by  the  fiat  of  the  State  and  not  by 
natural  generation,  decay,  and  death;  (2)  It  is  intangible,  hav- 
ing no  physical  body  through  which  it  acts  or  can  be  acted  upon ; 
(3)  It  is  immortal,  continuing  to  exist  during  the  period  prescribed 
by  the  State,  independent  of  the  life  or  death  of  the  natural  per- 
sons of  whom  it  is  composed ;  (4)  It  is  a  unit,  or  single  'person- 
ality, no  matter  how  numerous  may  be  its  members,  and  pos- 
sesses and  enjoys  its  own  legal  rights  of  person  and  property 
entirely  distinct  from  theirs. 

Rem,.  Several  forms  of  associations  are  known  to  the  law 
which,  though  not  true  corporations,  in  some  respects  resemble 
them.  Among  these  are  Quasi-Corporations,  Voluntary  Asso- 
ciations, and    Joint-Stock    Corporations.      A   quasi-corporation 


I 


§  24  INTRODUCTION  25 

is  a  group  of  persons  which  has,  for  so  long  a  time,  exercised 
corporate  powers  without  any  direct  authority  from  the  State 
that  the  State  deems  it  expedient  to  recognize  it  as  a  c()r])oration, 
to  the  extent  manifested  l)v  its  previous  corj)orate  acts.  Such 
corporations  are  generally  of  a  public  character,  whose  past  acts 
could  not  be  called  in  question  witliout  prejudice;  to  the  State. 
A  voluntary  association  is  a  group  of  persons  who  have  engaged 
in  a  common  enterj)rise  without  being  incor])orated,  and  under 
circumstances  wiiich  show  that  they  did  not  intend  to  form  a 
partnershij).  Many  religious,  literary,  and  benefit  associations 
are  of  this  class.  Their  legal  character  is  somewhat  doubtful, 
but  their  individual  members  are  usually  held  responsible  for  all 
those  acts  of  the  association  in  wliich  they  personally  participate. 
A  joint-stork  corporation  is,  under  the  laws  of  some  States,  a  true 
corporation  receiving  its  peculiar  name  to  distinguish  it  from 
charitable  and  other  civil  cor])orations  which  do  not  issue  stock 
or  engage  in  general  business  operations.  Under  the  laws  of 
other  States  this  name  is  given  to  commercial  associations  created 
under  special  laws  which  confer  u|)on  them  certain  corporate 
powers,  and  relieve  them  from  the  liabilities  which  attach  to  a 
mere  partnershij).  The  State  itself  may  also  act  in  a  corporate 
capacitij,  and  as  such  may  own  private  projierty,  make  lawful 
contracts,  and  incur  the  same  obligations  as  other  artificial 
persons. 
Rkad:  Rob.  Am.  .lur.,  §§  71,  SO,  S.3,  Sfi,  S7,  112; 

Barbour,  llif^lits  of  Persoius  and  ProjxTty,  pp.  54,  55; 

Dwiglit,  Law  of  Persons  and  Property,  pp.  350,  351; 

Walker,  American  Law,  §  90; 

Andrews,  American  Law,  §§  41G-420,  423; 

Clark,  Elementaiy  Law,  §§  237-239; 

Morawetz  on  Corporations,  §§  1,  6,  7,  474-477,  922,  923,  939-943, 
1044-1052; 

Clark  on  Corporations,  §§  1-3,  9,  11,  73-81,  246-255; 

Clark  and  Marshall  on  Corporations,  §§  1-7,  17-26; 

Thompson  on  Private  Corporations,  §§  1-12,  31,  2765-2779; 

Beach    on    Private    Corporations  (Pnrdy    Kd.),    §§    1-8,  538-541, 
1361-1396,  1403,  1411,  1415-1423. 

§  24.     Of  the  Creation  and  Powers  of  Artificial  Persons. 

An  artificial  person  is  created  by  a  Hat  of  the  State,  expressed 
either  in  a  direct  legislative  enactment,  called  a  "charter,"  or 
in  a  public  law  authorizing  the  issue  of  a  charter  by  some  desig- 
nated officer  to  any  group  of  persons  who  may  comply  with  the 
provisions  of  the  law.  By  this  charter,  taken  in  coimection  with 
the  laws  of  the  State  governing  corporations,  the  powers  which 
the  corj)oration  is  to  be  allowed  to  exercise  are  also  conferred; 


26  ELEMENTARY   LAW  §  24 

and  any  act  of  the  corporation  beyond  these  powers  is  ultra  vires, 
and  without  authority.  Of  such  acts  the  corporation  itself  can 
take  no  advantage,  nor  can  outside  parties  base  any  claim  upon 
them  except  in  cases  where  to  deny  the  claim  would  operate  as  a 
fraud  upon  the  claimant.  The  charter  of  a  corporation  is  inter- 
preted strictly  in  favor  of  the  public,  and  hence  clothes  the  cor- 
poration with  no  rights  which  it  does  not  verbally  express  or 
necessarily  imply.  Among  the  rights  enjoyed  by  every  corpora- 
tion are:  (1)  The  right  to  act  by  majority  vote;  (2)  The  right 
to  act  through  agents  duly  appointed ;  (3)  The  right  to  make  by- 
laws for  its  own  government ;  (4)  The  right  to  have  a  common 
name  and  a  common  seal;  (5)  The  right  to  acquire,  hold,  and 
dispose  of  the  property  which  may  be  needed  for  the  exercise  of 
its  charter  powers ;  (6)  The  right  to  make  and  perform  contracts 
within  the  limits  indicated  by  its  charter;  (7)  The  right  to  sue 
and  be  sued.  The  death  of  a  corporation  may  occur  through  the 
surrender  of  its  charter  by  the  corporators  to  the  State,  or  through 
the  forfeiture  of  its  charter  by  the  corporation  by  the  non-use  or 
misuse  of  its  powers,  or  through  the  repeal  of  its  charter  by  the 
State  either  by  a  new  legislative  enactment  or  by  a  proceeding  in 
a  court  of  law. 

Rem.  A  corporation  which,  having  a  legal  right  to  exist,  has 
complied  with  all  the  conditions  prescribed  by  law  as  to  the  mode 
of  its  creation  is  known  as  a  corporation  de  jure.  A  corporation 
de  facto  is  a  corporation  which,  having  a  legal  right  to  exist,  has 
embarked  on  its  corporate  enterprise  without  having  complied 
with  every  formal  condition  prescribed  by  law  as  to  the  mode  of 
its  creation.  Of  this  defect,  however,  no  one  can  take  advantage 
except  the  State  itself ;  and  as  between  the  corporation  and  out- 
side parties  its  acts  within  its  charter  powers  are  as  valid  as  if  its 
organization  had  been  in  complete  conformity  to  law.  There 
can  be  no  corporation  de  facto  unless  it  could  have  been  a  corpora- 
tion de  jure. 

Read:  Rob.  Am.  Jur.,  §§  72-76,  81,  82,  84,  85; 

Dwight,  Law  of  Persons  and  Property,  pp.  354-405 ; 

Walker,  American  Law,  §§91,  93,  94; 

Andrews,  American  Law,  §§  424-432,  451; 

Clark,  Elementary  Law,  §§  237-239; 

Metcalf,  Contracts,  pp.  181-186; 

Morawetz  on  Corporations,   §§  8-44,  316.  318,  325-366,  392,  411, 

491,  492,  575-581,  618-620,  641-654,  735-737,  744-755,  776-778, 

1002-1004; 


§  25  INTRODUCTION  27 

Clark  on  Corporations,  §§  4,  5,  6-8,  12-45,  49-72,  82-85; 

Clark  and  Marshall  on  Corporations,  §§  8-16,  37-69,  80-97,  123- 
131,  204-257,  268-283; 

Cook  on  Corporations,  §§  1-6,  15  b,  667-682; 

Thompson  on  Private  Corporations,  §§  35-42,  50-60,  145,  146,  160- 
163,  170-174,  178,  181,  198,  200,  201,  205,  210-212,  225-259, 
265-267,  271,  274,  297,  310,  312,  331-333,  965; 

Beach  on  Private  Corporations  (Purdy  Ed.),  §§  34-40,  46-49,  55,  60, 
61,  69,  72,  75,  96,  102-104,  106,  118-125/,  142-149,  819-822, 
887-896,  902,  922,  923,  958-961,  1015-1017,  1032,  1246-1249, 
1262-1269,   1292-1328; 

Wharton,  Conflict  of  Laws,  §§  105  a-105f . 

§  26.     Of  the  Classes  of  Artificial  Persons. 

Artificial  persons  are  of  various  classes:  (1)  Sole  or  Aggre- 
gate; (2)  Public,  Quasi-Public,  or  Private;  (3)  Eleemosynary 
or  Civil.  A  corporation  sole  is  composed  of  one  natural  person 
and  his  individual  successors,  such  as  the  bishop  of  a  diocese  or 
a  superintendent  of  highways.  A  corporation  aggregate  is  com- 
posed of  two  or  more  natural  persons  at  the  date  of  its  creation, 
and  remains  an  aggregate  corporation  though  the  number  of 
its  members  be  subsequently  reduced  to  one.  A  public  corpora- 
tion is  a  political  body,  established  by  the  State  for  political 
purposes,  exercising  within  a  designated  territory  certain  legis- 
lative, judicial,  and  executive  functions,  and  having  power  to 
hold  the  property  and  transact  the  business  necessary  to  the  per- 
formance of  its  public  duties.  Such  are  counties,  cities,  boroughs, 
and  incorporated  towns  and  villages.  A  private  corporation  is 
created  for  the  promotion  of  some  enterprise  in  which  its  individ- 
ual members  are  directly  or  officially  interested.  A  quasi-public 
corporation  is  a  private  corjioration  whose  corporate  enterprises 
are  so  beneficial  to  the  public  as  to  induce  the  State  to  clothe  it 
with  extraordinary  powers  such  as  the  State  alone  can  generally 
exercise,  —  as,  for  example,  the  power  to  take  private  property 
for  its  use  against  the  will  of  its  owner.  Railroad,  canal,  turn- 
pike, ferry,  and  bridge  companies  are  usually  quasi-public  cor- 
porations. An  eleemosynary  corporation  is  a  private  corporation 
created  for  charitable  j)urposes.  It  receives  and  holds  its  powers 
and  property  in  trust  for  its  designated  beneficiaries,  and  will  be 
compelled  by  a  court  of  equity  to  discharge  its  duties  in  their 
favor.  Orphanages,  asylums,  educational  and  religious  institu- 
tions are  examples  of  this  class  of  corporations.    A.  civil  corpora- 


28  ELEMENTARY   LAW  |  25 

tion  is  a  private  corporation  created  for  the  benefit  of  its  members, 
and  to  promote  their  spiritual,  intellectual,  bodily,  or  financial 
interests.  Of  civil  corporations  there  are  many  species ;  that 
which  commands  the  most  attention  from  the  courts,  at  the  pres- 
ent day,  being  the  stock  corporation.  A  stock  corporation  is  a 
financial  enterprise  designed  to  increase  the  fortunes  of  its 
members  by  engaging  in  some  joint  commercial  operation.  In 
such  corporations  each  of  the  members  subscribes  for  a  certain 
number  of  shares  into  which  the  proposed  capital  is  divided,  and 
thereby  becomes  liable  to  contribute  the  amount  of  the  prescribed 
or  par  value  of  such  shares  toward  the  payment  of  the  corporate , 
obligations.  These  shares  represent  the  interest  of  the  sub- 
scriber in  the  corporate  enterprise,  and  are  transferable  by  as- 
signment like  other  rights  of  property. 

Rem.  The  legal  importance  of  the  rights  and  liabilities  of 
corporations  has  increased  so  rapidly,  in  the  past  fifty  years,  as 
now  almost  to  overshadow  that  of  the  rights  and  liabilities  of 
natural  persons;  and  the  statement  and  application  of  the  law 
relating  to  them  forms  one  of  the  principal  duties  of  our  courts 
and  legislatures.  The  subject  is  pregnant  with  many  difficulties, 
and  demands  a  most  conservative  and  cautious  handling  from 
all  persons  in  authority,  lest  economic  progress  should  be  hind- 
ered by  the  vain  attempt  to  make  new  phases  of  social  life  con- 
form to  old  ideas  of  practical  justice  and  equality. 

Read:  1  Bl.  Com.,  pp.  467-485; 
Rob.  Am.  Jur.,  §§  88-111; 

Barbour,  Rights  of  Persons  and  Property,  pp.  55,  56 ; 
Dwight,  Law  of  Persons  and  Property,  pp,  351-353,  405-413; 
Walker,  American  Law,  §§  92,  93,  95; 
Andrews,  American  Law,  §§  364-415,  422,  433-450; 
Clark,  Elementary  Law,  §§  237-239; 
Morawetz  on  Corporations,  §§  2-5,  109,  128,  159,  228,  235-237,  435, 

438,  445,  779-781,  818-821; 
Clark  on  Corporations,  §§  10,  86-245; 
Clark  and  Marshall  on  Corporations,  §§  70-79; 
Cook  on  Corporations,  §§  7-15  a; 
Thompson  on  Private  Corporations,  §§  13-34; 
Beach  on  Private  Corporations  (Purdy  Ed.),  §§  9-33, 126,  127,  183- 

188,  302-308,  343.  346,  347,  349-352,  368,  371-381,  399,  400,  409, 

433-442,  576-586,  598; 
Smith,  Personal  Property,  §§  134-137; 
Boone,  Real  Property,  §  11. 


-k. 


§  26  n--^  INTRODUCTION  29 

§  26.     Of  Things. 

A  ihijig  is  a  being  devoid  of  personality.  Every  object  of  which 
the  law  can  take  notice,  except  persons  either  natural  or  artificial, 
is  therefore  a  thing.  Things  are  divided  into  several  classes :  (1) 
Corporeal  or  Incorporeal;  (2)  Movable  or  Immovable;  (3) 
Personal  or  Real.  Things  corporeal  are  those  which  are  tangible 
and  can  be  physically  occupied  by  man,  like  houses  or  lands; 
or  can  be  deUvered  by  one  person  to  another,  like  cattle  or  furni- 
ture. Things  incorporeal' arc  those  which  cannot  be  handled  or 
occupied  or  delivered,  such  as  the  unconfined  forces  of  nature, 
the  ideas  of  the  human  mind,  the  powers  of  corporations,  or 
rights  arising  out  of  contract  or  the  family  relations.  Things 
movable  are  those  which  can  be  removed  from  one  place  to  an- 
other without  losing  their  identity,  and  are  said  to  follow  the 
person  of  the  owner  wherever  he  goes.  Things  immovable  arc 
those  which  are  permanently  attached  to  one  locality,  or  which 
can  be  removed  therefrom  only  by  their  disintegration  or  destruc- 
tion. Under  certain  circumstances  things  wliich  are  naturally 
movable  are  regarded  by  the  law  as  immovable;  as  where  port- 
able materials  are  so  annexed  to  land  as  to  become  legally  in- 
separable from  it.  Things  personal  are  those  wliich  are  governed 
by  the  law  of  personal  property  in  reference  to  their  mode  of 
transfer  from  one  person  to  another,  and  to  the  remedies  pro- 
vided by  the  law  for  wrongs  by  which  the  rights  of  their  owner 
in  them  have  been  violated.  Things  real  are  those  which  are 
governed,  in  reference  to  the  same  subjects,  hy  the  law  of  real 
property. 

Rem.  As  a  person,  natural  or  artificial,  is  in  the  eye  of  the 
law  precisely  what  the  law  defines  him  to  be,  so  a  thing,  both  in 
itself  and  in  its  relations  to  persons  and  to  other  things,  agrees 
with  the  legal  definition  given  to  it  by  the  State,  even  though  its 
natural  characteristics  are  thereby  ignored.  Thus  the  same  ob- 
ject, being  governed  in  one  place  or  under  one  set  of  circum- 
stances by  one  body  of  law,  and  in  a  different  State  or  under 
other  circumstances  by  another  body  of  law,  may  be  in  turn  mov- 
able and  immovable,  j)ersoiuvl  or  real.  A  slave,  for  example, 
before  the  Civil  War,  was  in  some  States  a  person  and  in  other 
States  a  thing.  So  money,  which  is  by  nature  personal  and  mov- 
able, if  given  in  trust  to  l)e  invested  in  land,  thereby  tliDUgli  still 
money  becomes  real;    and  land,  which  is  in  itself  real  and  im- 


30  ELEMENTARY   LAW  §  27 

movable,  if  devised  to  be  sold  and  the  proceeds  expended  for  a 
special  personal  purpose  becomes  immediately  personal.  This 
rule  is  called  the  doctrine  of  "Equitable  Conversion." 

Read:  2  BI.  Com.,  pp.  16,  17,  20,  384-388; 
Rob.  Am.  Jur.,  §§  113-118; 

Barbour,  Rights  of  Persons  and  Property,  pp.  90,  91,  299,  300; 
Walker,  American  Law,  §  21; 
Andrews,  American  Law,  §§  518-532; 
Clark,  Elementary  Law,  §§  64,  69,  70; 
Smith,  Personal  Property,  §§  3,  6-8,  138-140; 
Brantly,  Personal  Property,  §§  2,  7; 
Pingrey,  Real  Property,  §  16; 
Kerr,  Real  Property,  §§  2,  79,  80,  103; 
Rice,  Real  Property,  §  13; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  1-11; 
Warvelle,  Real  Property,  pp.  1,  2; 
Boone,  Real  Property,  §§  10,  11,  347  d; 
Tiffany,  Real  Property,  §§  1-3,  103-109. 


§  27.     Of  the  Fundamental  Divisions  of  the  Law. 

Rights  inhere  in  persons  as  against  other  persons,  and  are  ex- 
ercisable over  persons  and  things.  As  persons  are  public  or 
private,  rights  also  are  pubUc  or  private ;  and  the  law  which  as- 
serts or  vindicates  them  is  therefore  public  or  private.  Hence  in 
classifying  the  law  into  its  great  fundamental  divisions  the  most 
natural  arrangement  distributes  the  whob  body  of  the  law  into 
four  parts: 

I.   The  Law  of  Private  Rights. 
II.  The  Law  of  Private  Wrongs  and  Remedies, 

III.  The  Law  of  Public  Rights. 

IV.  The  Law  of  Pubhc  Wrongs  and  Remedies. 

To  the  statement  and  explanation  of  the  principal  rules  of  law 
which  are  contained  in  each  of  these  divisions,  a  separate  Book 
of  this  treatise  will  now  be  devoted. 


BOOK  I 

OF  THE  LAW  OF  PRIVATE  RIGHTS 

§  28.     Of  the  Species  of  Private  Rights. 

Private  rights  are  those  which  private  persons  possess  as  against 
other  private  persons.  They  are  divisible  according  to  the  ob- 
ject of  the  right  into  three  classes:  (1)  Personal  Rights,  or  the 
rights  which  every  person  has  in,  to,  and  over  his  own  person; 
(2)  Property  Rights,  or  the  rights  which  every  person  has  in,  to, 
and  over  his  own  property;  (3)  Family  Rights,  or  the  rights 
which  c-very  person  has  in  reference  to  the  persons  and  property 
of  the  members  of  the  family  to  which  he  belongs.  Under  these 
three  heads  all-  private  rights  can  be  grouped ;  and  in  this  order 
they  will  hereafter  be  discussed. 

Rem.  Private  rights  are  sometimes  divided  into  absolute  and 
relative  rights.  Absolute  rights  are  said  to  be  those  which  belong 
to  man  whether  out  of  society  or  in  it,  including  the  rights  of 
person  and  property.  Relative  rights  are  said  to  be  those  which 
belong  to  man  as  a  member  of  society,  and  occupying  certain 
relations  toward  other  men.  This  classification  is  defective,  inas- 
much as  many  property  rights,  especially  those  founded  on  con- 
tract, are  relative  not  absolute.  It  is  also  based  upon  a  theoretical 
condition  of  the  owner  of  the  right  since  every  person,  whose 
rights  the  law  protects,  is  necessarily  a  member  of  society,  and 
his  most  absolute  rights  are  (jualified  by  his  relations  toward  his 
fellowmen.  The  classification  adopted  in  the  text,  being  foundod 
on  the  objects  of  the  rights  which  in  their  nature  and  the  modes 
of  their  enjoyment  are  defined  and  prescribed  by  law,  is  to  be 
preferred  because  its  divisions  are  stable,  and  the  rules  which 
govern  them  are  permanent  and  intelligible. 

Read:   1  HI.  Com.,  pp.  121-129; 

Barbour,  Rights  of  Persons  and  Property,  pp.  95-98; 
Dwiglit,  Law  of  Persons  and  Property,  p.  45. 


32  ELEMENTARY   LAW  S  29 


CHAPTER   I 

^        OF    PERSONAL    RIGHTS 

§  29.     Of  the  Nature  and  Divisions  of  Personal  Rights. 

Personal  rights  are  the  rights  which  every  man  has  in,  to,  and 
over  his  own  person.  They  include:  (1)  The  right  to  the  full 
and  complete  existence  of  his  person  according  to  its  nature,  un- 
interfered  with  by  the  wrongful  conduct  of  other  men ;  (2)  The 
right  to  act  or  forbear  according  to  the  capacity  of  his  person 
within  the  limits  fixed  by  reason  and  justice,  unrestrained  by 
any  exterior  authority  except  that  of  the  State.  The  first  of 
these  rights  is  called  the  Right  of  Personal  Security.  The  second 
is  known  as  the  Right  of  Personal  Liberty. 

Rem.  The  person  of  a  man  comprises  his  physical  body  and 
his  intellectual  soul ;  and  his  right  to  his  person'  is  his  right  to 
both  of  these  in  their  combined  condition,  and  to  all  the  faculties 
by  which  they  act  and  interact  upon  one  another.  Naturally,  the 
physical  body  being  the  visible  and  tangible  portion  of  this  com- 
bination and  the  means  by  which  the  person  acts  or  is  acted  on 
by  other  men,  it  is  the  object  of  the  law's  principal  solicitude; 
and  the  right  to  its  security  and  freedom  is  asserted  and  protected 
by  many  definite  rules.  The  intellectual  soul,  the  seat  of  emo- 
tions as  well  as  ideas,  being  more  incomprehensible  in  essence 
and  attributes  and  affected  in  many  mysterious  ways,  is  rarely 
noticed  by  the  law  except  when  its  operations  are  disturbed  by 
some  wrong  inflicted  on  the  body.  Thus  it  is  a  common  doctrine 
that  no  action  will  lie  for  mental  sufferings  alone,  or  for  the  mere 
perversion  of  the  intellect  by  falsehood  which  is  in  itself  one  of  the 
most  serious  of  injuries;  although  to  wound  the  feelings  by  an 
attack  upon  the  body,  or  upon  the  reputation  of  the  person  as  a 
whole,  is  a  grievous  legal  wrong. 

Read:  1  Bl.  Com.,  pp.  125-129; 

Cooley,  Const.  Law,  pp.  246,  247 ; 
Walker,  American  Law,  §  268; 
Andrews,  American  Law,  §§  454-459; 
Clark,  Elementary  Law,  §§  62,  63. 


§§  30,  31  PERSONAL  SECURITY  33 

SECTION  I 

OF  THE   RIGHT   OF   PERSONAL   SECURITY 

§  30.     Of  Personal  Security. 

Personal  security  includes  immunity  against  direct  physic^ 
attacks  upon  the  body,  and  indirect  deleterious  influences  upon 
its  health  and  comfort,  or  upon  the  enjoyment  of  that  esteem 
and  consideration  among  men  which  is  essential  to  the  perfec- 
tion of  a  social  being.  Hence  tlie  right  of  personal  security  has 
been  defined  as  "that  right  which  every  man  possesses  to  the 
legal  and  uninterrupted  enjoyment  of  his  life,  limbs,  body, 
health,  and  reputation."  This  right  is  not  originally  conferred 
by  law,  but  is  inherent  and  inalienable.  It  is  the  most  sacred 
of  all  rights,  and  any  serious  violation  of  it  merits  and  should 
receive  the  severest  punishment. 

Rem.  This  right  lies  at  the  foundation  of  all  other  personal 
rights,  and  in  a  certain  sense  includes  and  necessitates  the  rest ; 
since  the  enjoyment  of  life,  limbs,  body,  health,  and  reputation  is 
the  enjoyment  of  all  that  goes  to  make  up  the  entire  concrete  per- 
sonality of  every  individual.  Whatever,  therefore,  interferes 
with  this  enjoyment,  though  never  hitherto  named  as  a  wrong 
against  personal  security,  is  an  infringement  of  this  right  and  is 
forbidden  by  the  law. 

Read:  1  Bl.  Com.,  pp.  129-134; 

2  Kent  Com.,  Lect.  xxiv,  pp.  12-26; 

Barbour,  Rights  of  Persons  and  Property,  pp.  99-102; 

Andrews,  American  Law,  §§  460,  461. 

§  31.     Of  the  Right  to  Life. 

\  natural  person  comes  into  complete  legal  being  when  he  is 
fully  born;  that  is,  when  his  body  has  been  separated  from  the 
body  of  his  moth(T  and  he  has  begun  to  enjoy  an  independent 
existence  of  his  own.  A  natural  person  ceases  to  exist,  in  the  eye 
of  the  law,  when  he  is  physically  dead.  Between  the  instant  of 
his  birth  and  that  of  his  death  he  has  a  right  to  continue  to  live, 
and  is  presumed  by  law  to  be  about  to  live  indefinitely,  however 
great  may  be  the  probability  tiiat  he  will  soon  expire. 

Rem.  The  doctrine  that  the  legal  existence  of  natural  persons 
begins  at  birth  and  terminates  at  death  is  sul)ject  to  several  (juaU- 


34  ELEMENTARY   LAW  §  32 

fications.  First,  in  dealing  with  property  questions  the  law  takes 
notice  of  the  existence  of  an  unborn  child  even  from  the  moment 
of  its  conception,  and  asserts  its  rights  as  an  heir  or  devisee,  and 
will  appoint  a  guardian  to  protect  its  interests.  Second,  A  child 
which  dies  after  its  birth  from  violent  injuries,  received  by  it 
while  in  the  womb  of  its  mother,  is  regarded  by  the  law  as  having 
been  killed  by  the  person  who  inflicted  the  injuries.  In  both  these 
cases,  however,  it  is  essential  that  the  child  be  subsequently  born 
alive,  since  if  it  be  born  dead  its  imputed  rights  lapse  into  obliv- 
ion. Again,  in  reference  to  the  duration  of  Hfc,  the  law  sometimes 
considers  as  already  dead,  —  First,  persons  who  are  not  knoum  to 
be  alive  but  whose  age,  if  they  were  living,  must  far  exceed  the 
customary  limit  of  human  existence ;  Second,  persons  who  have 
been  absent  from  home  and  friends  for  a  long  period,  —  usually 
seven  years  or  over,  —  and  have  not  meanwhile  been  heard  of ; 
Third,  persons  who,  on  account  of  crime,  have  incurred  the  pen- 
alty of  civil  death  and  have  thereby  forfeited,  wholly  or  in  part, 
their  right  to  legal  recognition. 

Read:  1  Bl.  Com.,  pp.  130,  132,  notes; 
Rob.  Am.  Jur.,  §§  17,  18; 
Barbour,  Rights  of  Persons  and  Property,  pp.  102,  103. 


§  32.     Of  the  Right  to  Limbs  and  Body. 

The  limbs  and  body,  taken  together,  constitute  the  physical 
organism  in  which  the  soul  resides.  The  body  is  that  portion  of 
the  organism  which  lies  between  the  upper  part  of  the  hips  and 
the  neck,  not  including  the  arms.  The  remaining  portions  of  the 
organism  are  the  limbs.  The  limbs  are  the  members  useful  in 
labor  to  sustain  the  body,  and  in  fighting  to  protect  it,  and  on 
this  account  are  regarded  by  the  law  as  of  greater  consequence 
than  the  body.  The  right  to  the  enjoyment  of  the  limbs  and 
body  is  the  right  to  possess  them  in  peace,  not  only  free  from 
wrongful  invasion  but  free  from  the  fear  of  it;  and  hence  the 
law  prohibits  any  interference,  by  threats  or  otherwise,  with  that 
feeling  of  security  concerning  them  to  which  their  owner  is  en- 
titled. Even  where  their  owner  consents  in  advance  to  an  in- 
fringement of  this  right,  as  by  agreeing  to  fight  with  an  adversary, 
this  does  not  justify  or  excuse  the  infliction  of  a  serious  physical 
injury  upon  him. 

Rem.  Great  importance  formerly  attached  to  the  limbs  as 
the  natural  instruments  of  self-defence,  and  any  injury  which 


§  33  PERSONAL  SECURITY  35 

impaired  their  value  for  this  purpose,  or  diminished  the  warUke 
energy  and  courage  of  their  owner,  was  not  only  a  grievous  civil 
wrong  but  the  most  heinous  crime  of  mayhem.  The  limbs  were 
then  particularly  enumerated,  and  included  the  arms,  legs,  eyes, 
front  teeth,  and  the  male  organ  of  generation.  Under  our  present 
law  the  disfigurement  of  the  person  by  injuries  which  do  not  affect 
the  fighting  powers  has  obtained  an  almost  equal  consequence, 
even  when  such  injuries  are  confined  to  the  region  called  the  body. 

Read:  1  Bl.  Com.,  p.  130; 

3  Bl.  Com.,  p.  121; 

4  Bl.  Com.,  pp.  205-208; 

Barbour,  Rights  of  Persons  and  Property,  pp.  104,  105; 
Dwight,  Law  of  Persons  and  Property,  pp.  77-79. 

§  33.     Of  the  Legal  Protection  of  Life,  Limbs,  and  Body. 

The  law  protects  hfe,  Hmbs,  and  body  (1)  By  giving  to  every 
person  the  right  of  self-defence ;  (2)  By  declaring  that  all  prom- 
ises and  conveyances,  extorted  by  fear  of  bodily  injur}',  shall  be 
void  because  of  the  duress;  (3)  By  providing  various  public 
means  for  their  support  or  protection,  such  as  almshouses,  hospi- 
tals, and  police  regulations ;  (4)  By  its  educative  influence  upon 
the  people  at  large,  compelling  them  to  observe  habits  of  peace 
and  order;  (5)  By  affording  preventive,  compensatory,  or 
punitive  remedies  for  their  actual  or  threatened  violation. 

Rem.  The  right  of  self-defence  here  mentioned  is  the  right  to 
meet  aggressive  force  against  the  person  with  a  force  sufficient 
to  repel  it ;  even,  when  necessary,  to  the  taking  of  the  life  of  the 
assailant.  Duress  is  the  coercion  of  the  will  of  one  person  by  the 
wrongful  exercise  of  power  or  control  over  him  by  another.  This 
may  be  effected  by  violence  or  threats  against  security  or  liberty, 
or  by  the  unlawful  injury  or  appropriation  of  property.  An  act 
void  for  duress  may  be  made  valid  by  ratifying  it  after  the  duress 
has  ceased.  Police  regulations  for  the  preservation  of  the  peace 
and  the  protection  of  the  person  extend  to  all  forms  of  action  or 
forbearance  by  which  this  right  might  be  invaded,  and  are  as 
effective  as  the  state  of  current  public  opinion  will  permit.  And 
where  injuries  to  them  do  occur  the  remedies  provided  by  the  law 
are  ample  if  the  sufferers  pursue  them  with  energy  and  perse- 
verance, aufl  the  offi<'ials  to  whom  their  application  is  entrusted 
perform  their  legal  duties. 

Read:  1  Bl.  Com.,  pp.  130,  131,  359-365; 
3  Bl.  Com.,  pp.  3,  4,  120-122; 
Rob.  Am.  Jur.,  §§  44,  45. 


36  ELEMENTARY   LAW  §§  34,  35 

§  34.     Of  the  Right  to  Health. 

Health  is  that  condition  of  the  Uving  body  in  which  it  is  free 
from  disease,  pain,  weakness,  and  discomfort.  The  right  to 
health  is  thus  the  right  of  one  person  not  to  be  subjected,  through 
the  wrongful  actions  or  forbearances  of  other  persons,  to  any 
influences  which  either  impair  his  physical  energies  or  even  render 
him  bodily  uncomfortable.  Of  purely  mental  sufi^ering  or  dis- 
comfort the  law  takes  no  notice  unless  it  is  produced  by  agencies 
which  act  primarily  upon  the  body. 

Rem.  The  scope  of  the  right  to  health  is  manifested  more 
clearly  in  the  acts  which  have  been  treated  by  the  courts  as  viola- 
tions of  the  right  than  in  its  definition.  Thus  the  ringing  of 
church  or  factory  bells  at  unseasonable  hours ;  the  bleating  of 
animals  confined  in  pens  awaiting  slaughter;  the  emanation  of 
offensive  smells  from  the  operations  involved  in  lawful  trades; 
the  adulteration  of  articles  of  food  with  foreign  and  innocuous 
ingredients,  have  been  regarded  as  injuries  to  health  though  not 
resulting,  so  far  as  ascertainable,  in  any  real  bodily  harm  to  the 
complainants. 

Read:  3  Bl.  Com.,  p.  122; 

Barbour,  Rights  of  Persons  and  Property,  p.  105; 
Dwight,  Law  of  Persons  and  Property,  pp.  79,  80. 

§  35.     Of  the  Legal  Protection  of  Health. 

The  law  'protects  health:  (1)  By  giving  to  every  person,  whose 
health  is  endangered  by  objects  or  agencies  unlawfully  created 
or  maintained  by  any  other  person,  the  right  to  abate  or  remove 
them  peaceably  and  without  unnecessary  damage;  (2)  By 
suppressing  through  the  police  powers  of  the  State  all  influences 
by  which  health  is  imperilled ;  (3)  By  affording  to  the  injured 
or  threatened  party  prompt  and  efficient  remedies  for  the  pre- 
vention or  removal  of  the  evil,  and  the  punishment  of  those  who 
caused  it. 

Rem.  An  object  or  agency  which  is  a  menace  to  health  is 
called  a  nuisance,  and  the  peaceable  abatement  of  a  nuisance  by  the 
injured  party  is  one  of  the  oldest  remedies  known  to  our  law. 
The  necessity  of  applying  it,  however,  has  been  much  diminished 
by  the  enlargement  of  the  sphere  of  the  preventive  remedies  ob- 
tainable in  courts  of  equity.  The  principal  field  for  the  exercise 
of  the  police  powers  of  a  State  is  in  the  protection  of  health.    To 


§§  36,  37  PERSONAL  SECURITY  37 

this  end  elaborate  systems  have  been  organized,  and  officers  ap- 
pointed with  ahnost  unlimited  authority,  to  enforce  the  numerous 
sanitary  regulations  now  imposed  upon  the  people.  Stringent  as 
many  of  these  regulations  are  the  most  severe  of  them,  when  sub- 
mitted to  the  judgment  of  the  courts,  have  been  sustained. 


< 


Read:  3  Bl.  Com.,  p.  5; 
4  Bl.  Com.,  pp.  101,  102. 


§  36./  Of  the  Right  to  Reputation. 

The  reputation  of  a  person  is  that  favorable  opinion  which 
other  persons  entertain  concerning  his  character  and  capabili- 
ties. It  is  on  this  favorable  opinion  that  the  social  standing  of  a 
person  and  consequently  the  value  of  all  business  and  other 
personal  relations,  ultimately  depends;  and  its  importance  is 
universally  considered  as  transcending  that  of  all  forms  of  prop- 
erty, if  not  also  that  of  liberty  and  life  itself.  The  right  to  enjoy 
it  undiminished  by  the  wrongful  misrepresentations  of  other  per- 
sons is,  therefore,  of  high  estimation  in  the  law,  and  jealously 
guarded  against  all  forms  of  infringement. 

Rem.  Reputation  relates  not  only  to  moral  character  and  in- 
tegrity of  conduct,  but  to  physical  and  mental  capabilities.  Thus 
it  is  an  injury  to  reputation  to  say  that  an  attorney  is  ignorant,  a 
physician  unskilful,  an  artisan  incompetent  or  careless;  and  if 
such  statements  cause  pecuniary  loss  and  are  not  justified  by  the 
occasion,  the  utterer  is  liable  in  damages. 

Read:  1  Bl.  Com.,  p.  1.34; 

1  Kent  Com.,  Lect.  xxiv,  pp.  10-10; 

Barbour,  Ri<i;hts  of  Persons  and  Property,  pp.  105-108. 


1r 


u.     Of  the  Legal  Protection  of  Reputation, 

The  law  protects-  repiitotioH  :  (1)  By  presuming  that  every  per- 
son is  of  normal  character  and  capabiliti(\s,  and  performs  all  his 
duties  according  to  law  and  to  the  apj)roved  customs  of  business 
or  society;  (2)  By  affording  to  every  per.son  whose  reputation  is 
unlawfully  attacked  a  remedy  in  damages  through  the  courts  of 
law;    (3)  By  punishing  serious  attacks  upon  it  as  crimes. 

Rem.  The  presumption  of  law  in  favor  of  reputation  is  usu- 
ally expressed  in  the  maxim,  "Every  jicrson  is  presumed  to  be 
innocent  until  he  is  proved  to  be  guilty."  This  maxim  does  not, 
however,  exhaust  the  presumption  which  extends  to  every  phjuse 


3S  ELEMENTARY  LAW  §§  38,  39 

of  character  and  conduct,  and  regards  every  man  as  equal  in  all 
respects  to  ordinary  men  in  general  until  the  contrary  is  demon- 
strated. 

Read:  3  Bl.  Com.,  pp.  123-127; 
4  Bl.  Com.,  pp.  150,  151 ; 
Dwight,  Law  of  Persons  and  Property,  pp.  80-94. 

§  38.     Of  Legal  Limitations  on  the  Right  of  Personal  Security. 

The  right  of  personal  security  is  subject  to  the  fullowing  limi- 
tations: (1)  The  right  of  the  State  to  inflict  corporal,  even  capi- 
tal, punishment  for  crime ;  (2)  The  right  of  the  State  to  imperil 
the  lives,  limbs,  and  bodies  of  its  subjects  in  wars  of  offence  or 
defence  or  in  suppressing  public  disorders;  (3)  The  right  of 
public  officers  to  wound  or  kill  a  fleeing  or  escaping  felon  wlio 
cannot  be  otherwise  apprehended;  (4)  The  right  of  the  State  to 
protect  the  public  health  by  sanitary  regulations  which  expose 
individuals  to  the  risk  of  infection  or  disease ;  (5)  The  right  of  a 
husband  to  control  his  wife,  and  of  a  parent  or  schoolmaster  to 
chastise  a  child  or  pupil;  (6)  The  right  of  any  person  to  beat, 
wound  or  kill  in  self-defence ;  (7)  The  right  of  a  landholder  to 
eject  a  trespasser  who  refuses  to  depart. 

Rem,.  The  safety  of  the  people  being  the  highest  law,  all  indi- 
vidual rights  must  yield  when  they  come  into  collision  with  the 
welfare  of  the  State ;  of  which  the  State  alone  can  be  the  judge. 
Hence  the  most  sacred  of  all  personal  rights,  as  well  as  mere  prop- 
erty rights,  are  held  and  enjoyed  subject  to  such  restrictions  and 
burdens  as  the  State,  in  the  interest  of  the  whole  people,  may  see 
fit  to  impose.    The  individual  has  no  alternative  but  to  submit. 

Read:   1  Bl.  Com.,  pp.  408-412,  444,  445,  452,  453; 
4  Bl.  Com.,  pp.  7-19; 
1  Kent  Com.,  Lect.  xii,  p.  262;  Lect.  xxiv,  pp.  13,  14. 


SECTION  II 

^\^  OF   THE   RIGHT   OF   PERSONAL  LIBERTY 

§  39.     Of  Personal  Liberty. 

Personal  liberty  consists  in  the  entire  freedom  of  a  person  to 
act  or  to  forbear.  The  right  of  personal  liberty  is  the  right  to 
enjoy  this  freedom,  subject  to  no  restraint  except  that  which  the 
State  imposes  for  the  public  good.  It  includes  (1)  The  right  of 
locomotion,  or  the  right  to  go  or  remain  as  the  person  pleases; 


§  40  PERSONAL  LIBERTY  39 

(2)  The  right  to  engage  in  any  lawful  occupation;  (3)  The 
right  to  enter  into  any  lawful  contract;  (4)  The  right  to  sue  and 
testify  in  iha  courts;  (5)  The  right  oi  religious  liberty ;  (6)  The 
right  of  free  speech;  (7)  The  right  of  political  equality  to  other 
persons  of  the  same  status ;   (8)  The  right  to  privacy. 

Rem.  The  right  of  personal  liberty  is  antecedent  to  all  law. 
It  is  inherent  and  inalienable,  and  cannot  be  destroyed  or  in- 
fringed even  with  the  consent  of  its  possessor,  though  its  enjoy- 
ment may  be  temporarily  suspended  by  contract;  neither  can 
the  State  entirely  abrogate  it  except  as  a  punishment  for  crime. 
]\Ioreover,  the  view  which  the  law  takes  of  the  scope  and  content 
of  this  right  is  gradually  extending,  and  it  now  embraces  several 
ingrediental  rights  which  formerly  were  not  noticed  by  the  law. 

Read:  1  Bl.  Com.,  p.  134; 
4  Bl.  Com.,  pp.  151-153; 
1  Kent  Com.,  Lect.  xxiv,  pp.  34-37; 
Cooley,  Const.  Law,  pp.  224-207 ; 

Barbour,  Rights  of  Persons  and  Property,  pp.  108-126; 
Andrews,  American  Law,  §§  462,  468-472. 


§  40.  Of  the  Legal  Protection  of  the  Right  of  Personal  Liberty. 
The  law  protects  the  right  of  personal  lihcrty:  (1)  By  forbid- 
ding any  interference  with  the  freedom  of  a  person  in  any  manner 
or  degree,  except  by  due  process  of  law ;  (2)  By  treating  unlaw- 
ful restraints  upon  liberty  as  a  species  of  duress,  and  holding 
void  all  acts  or  contracts  made  under  its  injBuence ;  (3)  By  rec- 
ognizing the  right  of  any  person,  who  is  luilawfully  confined,  to 
use  any  force  that  may  be  necessary  in  order  to  escape;  (4)  By 
according  to  every  person  lawfully  confined,  except  in  pursuance 
of  the  judgment  of  a  court  or  while  held  for  trial  in  a  ca])ital  case 
where  the  proof  is  evident  or  the  presumption  great,  the  right  to 
be  released  on  reasonable  bail ;  (5)  By  giving  to  every  person 
whose  liberty  is  restrained  the  right  to  have  the  legality  of  the 
restraint  investigated  on  a  Writ  of  Habeas  Corpus;  (0)  By 
affording  to  the  injured  party  compensatory  and  preventive 
remedies  for  past  or  threatened  invasions  of  this  right;  (7)  By 
punishing  the  more  serious  violations  of  the  right  as  crimes;  (S) 
By  providing  methods  in  which  the  validity  and  constitutionality 
of  laws  restricting  liberty  can  be  submitted  to  the  judgment  of  th^^ 
courts  of  last  resort. 


40  ELEMENTARY   LAW  §  41 

Rem.  Due  process  of  law  is  the  regular  procedure  established 
by  the  State  for  the  examination  and  determination  of  questions 
of  fact  and  law.  It  differs  in  different  species  of  cases,  and  in  the 
same  species  at  different  periods.  But  without  the  institution  and 
completion  of  the  procedure,  required  by  the  current  law  in  the 
same  species  of  cases,  no  person  can  be  lawfully  subjected  to  any 
invasion  of  his  private  or  public  rights. 
Read:  1  BI.  Com.,  pp.  135-138; 

3  Bl.  Com.,  pp.  127-138; 

4  Bl.  Com.,  pp.  218,  219; 

1  Kent  Com.,  Lect.  xxiv,  pp.  26-34; 

Cooley,  Const.  Law,  pp.  241-246,  326; 

Dwight,  Law  of  Persons  and  Property,  pp.  94-103. 

§  41.  Of  the  Legal  Limitations  on  the  Right  of  Personal  Liberty. 
The  right  of  personal  liberty  is  subject  to  the  following  limita- 
tions: (1)  The  right  of  the  State  to  compel  its  subjects  to  render 
service  to  the  public,  when  necessary,  as  soldiers,  mariners, 
peace-officers,  jurymen,  witnesses,  and  in  other  capacities, 
either  with  or  without  compensation;  (2)  The  right  of  the 
State  to  arrest  and  hold  persons  accused  of  crime,  and  if  found 
guilty  to  punish  them  by  imprisonment;  (3)  The  right  of  the 
State  to  detain  the  infected,  the  insane,  the  helpless,  and  other 
dangerous  persons  in  the  interest  of  the  public  health  and 
safety ;  (4)  The  right  of  the  State  to  prevent  persons,  who  may 
be  needed  as  witnesses  or  parties  in  expected  litigation,  from 
going  outside  its  territorial  jurisdiction ;  (5)  The  right  of  the 
State  to  seize  and  detain  fugitive  criminals  from  other  States, 
and  deliver  them  to  the  State  from  which  they  fled,  in  order 
that  they  may  there  be  punished  for  their  crimes. 

Rem.  Personal  liberty,  like  personal  security,  is  always  sub- 
ordinate to  public  necessity.  The  individual  concedes  this  by 
living  in  society;  and  the  sacrifices  he  makes  for  the  common 
good  are  the  price  he  pays  for  the  privilege  of  human  companion- 
ship and  the  protection  of  human  laws.  That  the  burdens  are  too 
often  unfairly  distributed  is  true ;  but  this  is  a  defect  in  the  ex- 
pression or  the  administration  of  the  law,  and  not  an  error  in  its 
principles.  Even  he  who  suffers  most  severely  is  better  off  than 
if  deprived  of  the  social  benefits  which  his  sufferings  help  to 
secure. 

Read:  1  BI.  Com.,  pp.  343,  408-421; 

3  Bl.  Com.,  pp.  287-290,  354,  369; 

D\\'ight,  Law  of  Persons  and  Property,  pp.  103-116. 


§  42  PROPERTY  RIGHTS  4] 


CHAPTER  II 

OF    PROPERTY    RIGHTS 

§  42,     Of  the  Right  of  Property. 

The  right  of  property  is  the  right  which  every  person  has  to 
acquire,  enjoy,  and  dispose  of  property,  subject  to  no  control 
save  that  of  the  law.  The  right  to  acquire  property  is  one  form 
of  the  right  of  personal  liberty.  The  right  to  dispose  of  property 
by  abandoning  it  to  the  public  is  another  form  of  the  same  right. 
The  right  to  enjoy  property  when  acquired  is  a  right  born  of 
natural  justice.  The  right  to  dispose  of  it  to  particular  individ- 
uals, or  for  particular  purposes,  is  conferred  and  regulated  by 
law. 

Rem.  Personal  liberty,  as  has  been  already  shown  (§  30), 
embraces  the  right  of  a  person  to  devote  his  energies  to  any  lawful 
occupation,  and  by  necessary  consequence  to  receive  the  results 
thereof.  But  no  person  can  be  obliged  to  retain  such  results 
against  his  will,  for  this  would  place  restrictions  on  his  liberty. 
Thus  the  acquisition  and  abandonment  of  property  may  be 
identified  entirely  with  the  exercise  of  personal  liberty.  The  en- 
joyment of  property,  however,  by  one  person  retiuires  forbear- 
ance on  the  part  of  others,  and  this  though  dictated  by  reason  and 
justice  cannot  be  enforced  except  by  law.  Hence  the  right  to 
enjoy  property  is,  in  part  at  least,  of  legal  origin.  So  also  as  the 
disposition  of  property  to  particular  persons  or  for  particular  pur- 
poses is  not  effective  unless  the  law  affirms  the  disj)osition,  and 
protects  them  in  the  enjoyment  of  its  benefits,  this  right  is  a 
creature  of  the  law. 

Read:  1  IM.  Corn.,  pp.  138-140; 
2  HI.  Com.,  pp.  1-14; 
2  Kent  Com..  Loot,  xxxiv,  pp.  .317-32.S; 
Barbour,  Rij^lits  of  Persons  and  Property,  pp.  S6-89; 
Dwight,  Law  of  Persons  and  Property,  pp.  415-417; 
Walker,  American  I^aw,  §  2G8; 
Brantly,  Personal  Property,  §  1; 
Smith,  Personal  Property,  §  1. 


42  ELEMENTARY  LAW  §§  43,  44 

§  43.     Of  Property. 

Property  includes  whatever  is  capable  of  being  exclusively 
possessed  and  enjoyed  by  man,  whether  it  be  corporeal  or  in- 
corporeal, movable  or  immovable.  Some  objects,  like  the  oceans 
or  the  atmosphere,  are  incapable  of  such  control  and  conse- 
quently belong  to  nobody.  Other  objects,  like  flowing  water  or 
captured  wild  animals,  are  susceptible  to  control  for  the  time 
being  only,  and  while  such  control  lasts  they  belong  to  their  pos- 
sessor. Still  other  objects,  like  land,  furniture,  or  clothing,  are 
capable  of  complete  and  permanent  control,  and  are  always 
property. 

Rem.  In  a  certain  sense  the  oceans,  the  atmosphere,  and  the 
unconfined  forces  of  nature  may  be  said  to  belong  to  man,  inas- 
much as  they  are  part  of  the  earth  which  he  inhabits,  and  are 
necessary  for  his  use.  But  this  does  not  make  them  property,  for 
neither  individually  nor  collectively  can  he  acquire  them  nor 
dispose  of  them,  however  extensively  he  may  enjoy  them.  His 
dominion  over  them  is  political  rather  than  proprietary,  and  his 
control  terminates  with  the  regulation  of  their  use.  But  separate 
portions  of  them,  when  confined,  may  come  transiently  under 
his  dominion,  and  like  running  water  or  captured  wild  animals 
be  his  while  he  has  them;  ceasing  to  be  property  when  they 
escape  from  his  control. 

Read:  2  Bl.  Com.,  pp.  14,  15,  391-395; 
1  Kent  Com.,  Lect.  ii,  pp.  26-29; 
Woolsey,  International  Law,  §§  59,  60; 
Barbour,  Rights  of  Persons  and  Property,  pp.  89,  90,  284; 
Dwight,  Law  of  Persons  and  Property,  pp.  418,  421,  422; 
Walker,  American  Law,  §  129; 
Smith,  Personal  Property,  §  2; 
Kerr,  Real  Property,  §  1. 


SECTION  I 

OF  PROPERTY  RIGHTS  IN  GENERAL 

§  44.     Of  the  Species  of  Property  Rights. 

Property  rights,  or  rights  to  property,  are  of  three  species:  (1) 
The  right  of  naked  possession ;  (2)  The  right  of  possession ;  and 
(3)  The  right  of  ownership.  The  rigfd  of  naked  possession  is 
the  right  which  every  person,  who  is  in  the  actual  possession  of  an 
object,  has  to  retain  that  object  in  his  possession  against  all  the 


§  45  PROPERTY  RIGHTS  43 

world  except  the  true  owner  or  the  rightful  possessor.  The 
right  of  possession  is  the  right  which  a  person  may  have  to  the 
immediate  possession  and  enjoyment  of  an  object  as  against  all 
the  world.  The  right  of  oimiership  is  the  right  which  a  person 
may  have  to  perpetual  and  exclusive  dominion  over  an  object, 
subject  only  to  the  outstanding  rights  which  the  owner  has  him- 
self voluntarily  created  in  that  object  in  favor  of  other  persons. 
The  right  of  ownership  may  or  may  not  be  coupled  with  the  right 
of  possession.  The  right  of  possession  may  or  may  not  be  ac- 
companied by  actual  possession. 

Rem.  The  right  of  naked  possession,  sometimes  called  the 
right  to  custody,  may  originate  either  in  a  rightful  or  a  wrongful 
act  on  the  part  of  the  possessor.  Thus  a  servant  having  charge  of 
his  master's  goods,  the  finder  of  lost  property,  the  thief  retaining 
the  booty  in  his  hands,  all  alike  enjoy  this  right  and  can  enforce 
and  protect  it  in  the  same  legal  methods.  This  right  is  recognized 
by  law,  not  so  much  for  the  benefit  of  the  possessor  as  for  the  sake 
of  peace;  and  therefore,  until  the  true  owner  or  the  lawful  pos- 
sessor interferes,  it  maintains  the  right  of  the  actual  possessor  to 
the  property,  —  from  which  rule  comes  the  maxim  that  "posses- 
sion is  niyie  points  of  the  law."  The  right  of  possession,  on  the 
other  hand,  always  originates  in  a  lawful  act,  and  is  derived  from 
the  right  of  ownership  residing  either  in  the  possessor  or  in  some 
other  person  who  has  conferred  upon  him  the  possessory  right,  — 
as  in  the  case  of  a  tenant  of  land  or  a  borrower  of  goods. 

Read:  2  Bl.  Com.,  pp.  195-199; 

Markby,  Elements  of  Law,  §§  307-310,  347-399; 

Holland,  Jurisprudence,  pp.  139-152; 

Barbour,  Rights  of  Persons  and  Property,  pp.  283,  284,  549-552; 

Clark,  Elementary  Law,  §§  65-67; 

Kirchwey,  Readings  on  Law  of  Real  Property,  pp.  461-466; 

Warvelle,  Real  Property,  pp.  15-26. 

§  45.     Of  the  Legal  Protection  of  Property  Rights. 

The  law  protects  property  rights:  (1)  By  giving  to  every  pos- 
sessor of  property  the  right  to  defend  it  by  force  from  the  more 
serious  wrongful  violent  attacks ;  (2)  By  giving  to  every  person, 
whose  property  has  been  wrongfully  taken  from  him,  the  right 
peaceably  to  recapture  it  from  the  oil'ender;  (3)  By  establishing 
police  regulations  in  favor  of  projierty,  and  organizing  executive 
departments  to  enforce  them ;  (4)  By  providing  j)rivate  reviedies 
in  the  courts  to  prevent  apprehended,  or  compensate  for  past. 


44  ELEMENTARY   LAW  §  46 

violations  of  these  rights ;    (5)  By  punishing  grievous  and  mali- 
cious injuries  to  these  rights  as  crimes. 

Rem.  The  righ  to  defend  or  recapture  property  is  sometimes 
identified  with  the  right  of  self-defence  against  injuries  to  security 
and  liberty,  but  in  reality  it  rests  upon  a  different  principle  and  is 
confined  within  much  narrower  limits.  Where  the  property  at- 
tacked is  a  dwelling  house,  and  thus  partakes  of  the  sanctity  of 
the  person  of  the  occupant,  and  the  attack  if  completed  would 
be  a  felony  like  burglary  or  arson,  the  possessor  may  resist  it 
even  by  taking  life.  Other  invasions  of  property  may  be  prevented 
by  milder  means,  but  ordinarily  not  when  the  defence  would  in- 
volve a  breach  of  the  public  peace  or  an  assault  upon  the  ofiender 
or  a  trespass  against  third  persons.  The  remedies  provided  by 
the  law  are  generally  deemed  by  it  to  be  sufficiently  prompt  and 
ample  to  protect  and  vindicate  these  rights  without  the  resort  of 
the  injured  party  to  such  extreme  measures  as  may  be  necessary 
in  defence  of  personal  rights. 

Read  :  3  Bl.  Com.,  pp.  3,  4. 

§  46.     Of  the  Legal  Limitations  upon  Property  Rights. 

Property  rights,  like  personal  rights,  are  subject  to  various 
legal  limitations.  The  right  to  acquire  property  may  be  restricted 
as  to  the  kind  or  quantity  of  the  property,  or  the  mode  of  acquisi- 
tion, or  the  persons  by  whom  it  is  acquired.  The  right  to  enjoy 
property  is  strictly  regulated  by  laws  intended  to  prevent  public 
and  private  nuisances.  The  right  to  dispose  of  property  may  be 
limited  by  rules  prohibiting  its  destruction,  its  extravagant  con- 
sumption, or  its  transfer  to  certain  persons,  in  certain  places,  at 
certain  times,  or  under  certain  conditions.  The  property  itself 
may  also,  when  necessary,  be  taken  by  the  State  for  public  use 
under  the  form  of  taxes,  or  by  virtue  of  the  right  of  eminent 
domain. 

Rem.  Instances  of  the  restrictions  on  the  right  to  acquire 
property  are  found  in  modern  game  and  fishing  laws ;  on  the  right 
to  enjoy  property,  in  laws  regulating  the  speed  of  vehicles,  the 
noise  and  smoke  of  factories,  the  conduct  of  offensive  trades, 
etc. ;  on  the  right  to  dispose  of  property,  in  the  rules  concerning 
the  sale  of  explosives  or  intoxicating  liquors. 

Read:  2  Kent  Com.,  Lect.  xxxiv,  pp.  338-340; 

Barbour,  Rights  of  Persons  and  Property,  pp.  89,  285-295; 
Dwight,  Law  of  Persons  and  Property,  pp.  423-446; 


§  47  PROPERTY  RIGHIS  45 

Andrews,  American  Law,  §  594; 
Clark,  Elementary  Law,  §  68; 
Smith,  Personal  Property,  §  5. 

§  47.     Of  Estates. 

The  right  of  naked  possession,  the  right  of  possession,  and  the 
right  of  ownership  are  each  in  their  very  nature  exclusive,  and 
can  therefore  subsist  only  in  one  person  or  in  one  collective  group 
of  persons  at  the  same  time.  Consequently  an  article  of  property 
can  have,  at  any  given  moment,  but  one  owner  or  group  of  owners, 
but  one  possessor  or  group  of  possessors;  no  other  persons  hav- 
ing concurrently  any  rights  of  possession  or  ownership  therein. 
This  doctrine,  applied  to  concrete  articles  of  property  like  a  piece 
of  land  or  a  horse,  would  not  at  all  meet  the  needs  of  modern 
social  conditions.  The  landlord  and  tenant  of  a  piece  of  land, 
the  owner  and  hirer  of  a  horse,  do  each  own  something,  and 
possess  something;  and  the  rights  of  ownership  or  possession  of 
one  are  distinct  from,  and  are  assertible  against,  the  rights  of 
ownership  or  possession  of  the  other;  and  yet  these  rights  exist 
at  the  same  time.  Either  then  the  rights  of  possession  and  owner- 
ship are  not  in  their  nature  exclusive,  which  is  impossible;  or 
the  thing  owned  and  possessed  is  not  the  concrete  article  of 
property  which,  being  single  and  indivisible,  is  capable  of  but  one 
exclusive  ownership  or  possession.  The  law  escapes  from  this 
(lilennna  by  declaring  that  the  object  of  ownership  is  not  the  con- 
crete article  of  property,  but  a  certain  interest  therein  to  which 
it  gives  the  name  of  an  "Estate."  This  estate  is  a  legal  entity, 
composed  of  rights  and  ol)ligations,  and  as  any  number  of  such 
estates  can  coexist  in  the  same  concrete  article  of  property  with- 
out conflicting  with  each  other,  their  concurrent  ownership  and 
possession  presents  no  practical  or  legal  difficulties.  Thus  the 
landlord  owns  and  possesses  one  estate  in  the  land,  —  the  tenant 
another ;  the  owner  owns  and  possesses  one  estate  in  the  horse,  — 
the  hirer  another;  and  the  rights  and  obligations  of  which  the 
estate  of  the  landlord  or  the  owner  consists  are  entirely  com- 
patible with  those  of  which  the  estate  of  the  tenant  or  hirer  is 
composed. 

Rem.,  l^he  term  "cffiate"  like  the  term  "statu.f"  denotes  a 
legal  attitude  or  relation,  and  as  the  status  of  a  person  himself  is 


.^ 


46    /  \  ELEMENTARY  LAW  §  4B 

the  sum  of  his  legal  rights  and  duties  in  reference  to  himself,  so  the 
estate  of  a  person  in  an  article  of  property  is  the  sum  of  his  legal 
rights  and  duties  in  reference  to  that  article  of  property.  An  estate 
may  include  all  rights  and  obligations  which  the  law  recognizes 
in  reference  to  the  article  of  property,  and  thus  constitute  the 
sole  or  principal  estate,  as,  for  example,  a  fee  simple  absolute  in 
land ;  or  it  may  include  only  certain  restricted  rights  and  duties 
like  an  estate  at  will,  and  thus  be  a  subordinate  estate.  Between 
these  two  extremes  estates  embracing  any  number  or  quality  of 
rights  and  obligations  known  to  the  law  may  be  created.  The 
content  of  an  estate  is  either  fixed  by  law  as  in  estates  in  dower,  or 
by  the  act  of  the  party  conferring  the  estate  as  in  a  lease  for  years ; 
and  this  content  cannot  be  varied  after  the  estate  comes  into  ex- 
istence without  thereby  destroying  the  estate  or  substituting  for 
it  a  new  estate  composed  of  different  rights  and  duties.  When 
concurrent  estates  exist  in  the  same  article  of  property  the  right 
to  use  and  enjoy  the  article  itself  will  reside  in  the  person  whose 
estate  includes  the  right  of  immediate  possession.  Existing  es- 
tates may  be  divided  into  lesser  estates,  or  may  be  consolidated  in 
one  owner,  or  may  be  transferred  from  one  owner  to  another  with- 
out varying  their  content,  or  may  be  entirely  destroyed ;  and  still 
no  change  may  take  place  in  the  article  of  property  or  in  its  actual 
possession.  The  flexibility  which  this  doctrine  of  estates  gives 
to  our  law  is  one  of  the  chief  qualities  which  adapts  it  to  the  needs 
of  a  progressive  people. 

Read:  2  BI.  Com.,  p.  103; 

Markby,  Elements  of  Law,  §§  314-334; 

Digby,  History  of  the  Law  of  Real  Property,  p.  233; 

Washburn,  Real  Property,  §  123; 

1  Greenleaf,  Evidence,  §§  189,  523; 

Barbour,  Rights  of  Persons  and  Property,  pp.  301-310; 

Walker,  American  Law,  §  137; 

Andrews,  American  Law,  §  598; 

Clark,  Elementary  Law,  §  192; 

Smith,  Personal  Property,  §  23; 

Kerr,  Real  Property,  §§  226-228; 

Pingrey,  Real  Property,  §  1 ; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  199-203; 

Warvelle,  Real  Property,  pp.  7-15,  457-464; 

Boone,  Real  Property,  §  13; 

Tiffany,  Real  Property,  §  17. 


§  48.     Of  Estates  Real  and  PersonaL 

A  real  estate  is  one  created  to  endure  for  an  indefinite  future 
time.  A  personal  estate  is  one  created  to  endure  for  a  predeter- 
mined future  time.    At  one  period  in  our  legal  history  the  terms 


I 

§  49  PROPERTY   RIGHTS  \    47 

"real"  and  "personal,"  when  applied  to  property,  were  regarded 
as  nearly  synonymous  with  "immovable"  and  "movable" ;  and 
as  there  is  a  certain  analogy  between  permanency  of  duration 
and  fixedness  of  location  or  their  opposites,  the  same  terms  came 
to  be  used  to  distinguish  between  a  transitory  and  a  permanent 
estate.  And  though  the  terms  "real"  and  "personal,"  when 
predicated  of  concrete  articles  of  property,  no  longer  mean  "im- 
movable" and  "movable,"  their  meaning  in  reference  to  estates 
is  still  unchanged.  In  contemplation  of  law  that  which  is  perma- 
nent is  of  higher  dignity  and  value  than  that  which  is  temporary, 
and  consequently  a  real  estate  is  always  greater  than  a  personal 
estate  in  the  same  article,  without  regard  to  their  pecuniary  im- 
portance or  prospective  durabiUty;  and  when  the  two  estates 
meet  together  in  the  same  person  the  lesser  will,  with  certain  ex- 
ceptions, be  merged  and  lost  in  the  greater.  Thus  an  estate 
granted  to  an  octogenarian  for  his  own  life  is  greater  than  an 
estate  granted  to  another  person  in  the  same  article  for  a  thou- 
sand years;  and  if  the  octogenarian  should  purchase  the  lesser 
estate  it  would  merge  at  once  in  his  life  estate,  and  cease  with  it 
at  his  death. 

Rem.  The  distinction  between  real  and  personal  estates  is 
principally  applicable  to  estates  in  real  property,  as  will  hereafter 
be  seen ;  but  estates  in  personal  property  are  sometimes  of  such 
a  character  that  the  same  classification,  and  the  rules  which 
follow  it,  become  imperative.  An  estate  for  years  in  personal 
property,  to  be  followed  by  a  perpetual  estate  in  the  same  prop- 
erty in  another  person,  for  example,  presents  questions  of  law 
which  require  this  distinction  to  be  made  and  its  consequences 
enforced. 

Read:  2  Bl.  Com.,  p.  386; 

2  Kent  Com.,  Lect.  xxxv,  p.  342; 

Rice,  Real  Property,  §  3; 

Warvelle,  Real  Property,  pp.  66-68,  128,  129. 

§  49.     Of  Estates  Legal  and  Equitable. 

The  courts  of  common  law  aiuj  courts  of  equity  differ  as  to  the 
method  and  the  measure  of  the  redress  which  they  provide  for 
violated  rights  and  obligations.  Some  estates  are  so  created  that 
their  rights  and  obligations  can  suffer  no  invasion  for  which 
the  courts  of  common  law  cannot  apply  a  remedy.    Other  estates 


48  ELEMENTARY   LAW  §  49 

are  of  such  a  character  that  no  adequate  protection  can  be 
afforded  them  except  in  courts  of  equity.  To  the  former  is  given 
the  name  of  legal  estates;  to  the  latter,  that  of  equitable  estates. 
An  equitable  estate  is  always  derived  from  and  dependent  upon 
some  legal  estate,  and  must  therefore  always  have  some  legal 
estate  to  support  it.  Hence  if  there  be  but  one  estate  in  an 
article  of  property  it  is  a  legal  estate.  If  there  be  both  a  legal  and 
an  equitable  estate  the  legal  estate  is  the  superior  estate  in  the 
courts  of  common  law.  If  a  legal  and  equitable  estate  meet  in  the 
same  person,  the  equitable  estate,  except  in  certain  cases,  merges 
in  the  legal. 

Rem.  The  courts  of  common  law  were  permanently  estab- 
lished, and  their  powers  and  procedure  were  determined,  in  an 
age  when  almost  the  only  property  known  to  the  law  was  land, 
and  when  the  only  property  right  clearly  perceived  and  protected 
by  the  law  was  the  right  of  possession.  The  remedies  applied  by 
these  courts  were,  therefore,  adapted  to  the  vindication  of  posses- 
sory rights,  and  possession  or  the  right  to  the  present  or  ex,_ect- 
ant  possession  of  the  property  became  the  characteristic  of  legal 
estates.  But  when,  as  a  result  of  social  development,  other  es- 
tates Avere  created  which  did  not  contemplate  the  possession  of 
the  property,  but  the  enjoyment  of  its  benefits  while  the  property 
itself  remained  in  the  possession  of  another,  the  remedies  pro- 
vided by  these  courts  were  not  sufficient  to  enforce  the  rights 
contained  in  such  estates,  and  jurisdiction  over  them  was  there- 
fore taken  by  the  courts  of  equity  whose  methods  of  procedure 
were  adapted  to  protect  them.  Thus  where  land  is  conveyed  to 
A  with  instructions  to  apply  its  net  income  to  the  support  of  B 
the  legal  estate  of  A  can  be  recognized  by  the  courts  of  common 
law,  because  it  includes  the  right  of  possession,  and  if  his  posses- 
sion is  disturbed  they  will  afford  him  an  adequate  remedy,  but 
they  have  no  form  of  procedure  by  which  they  can  compel  A  to 
expend  the  income  for  the  benefit  of  B.  For  this  purpose  B 
must  seek  the  aid  of  a  court  of  equity,  which  can  compel  A  to 
perform  his  duty  under  penalty  of  imprisonment  for  contempt 
of  court.  This  example  also  illustrates  the  dependence  of  the 
equitable  on  the  legal  estate ;  for  if  there  were  no  outstanding  pos- 
sessory estate,  the  benefits  to  which  B  is  entitled  never  would 
accrue,  or  if  spontaneously  produced  there  would  be  no  one  on 
whom  B  could  call  for  their  management  and  application. 
Obviously,  also,  if  B's  estate  expires  the  legal  estate  of  A  would 
be  the  only  estate,  while  if  the  equitable  estate  of  B  should  be 
transferred  to  A  the  legal  estate  would  reside  in  him  free  from 


§  50  PROPERTY  RIGHTS  49 

the  obligation  to  account  to  B  for  the  income  of  the  property, 
and  thus  the  equitable  estate  would  be  swallowed  up  and  lost  in 
the  legal  estate.  On  the  other  hand,  should  B  acquire  the  legal 
estate  the  right  to  the  benefits  would  be  thenceforth  inseparable 
from  his  j)ossessory  right,  and  the  equitable  estate,  as  distin- 
guished from  the  legal  estate,  would  disappear. 

Read:  2  Bl.  Com.,  pp.  327-331; 

4  Kent  Com.,  Lect.  Ixi,  pp.  289-294; 

Barbour,  Rights  of  Persons  and  Property,  pp.  50-53; 

Walker,  American  Law,  §§  169-172; 

Andrews,  American  Law,  §§  631-634; 

Clark,  Elementary  Law,  §  203; 

Tiedeman,  Real  Property,  §§  437-440; 

Kirciiwey,  Readings  on  the  Law  of  Real  Property,  pp.  397-400; 

Warvelle,  Real  Property,  pp.  117-119. 

§  50.     Of    the    Species    of    Property :  Real    Property :  Personal 
Property. 

Property  consists  of  things  and  therefore,  like  things,  is  either 
Corporeal  or  Incorporeal,  Movable  or  Immovable,  Personal  or 
Real.  For  the  purposes  of  classification  the  latter  division  is  most 
convenient,  since  the  line  of  demarcation  between  the  real  and 
the  personal  is  fixed  by  the  law,  and  the  law  of  projicrty  itself  is 
divided  into  the  Law  of  Real  Property  and  the  Law  of  Personal 
Property.  Real  property  comprises  those  things,  whether  cor- 
poreal or  incorjioreal,  movable  or  immovable,  which  are  governed 
for  the  time  being  by  the  Law  of  Real  Pr()j)erty.  By  operation  of 
law  they  are  clothed  with  the  following  legal  characteristics:  (1) 
They  are  controlled  by  the  lex  rei  sites,  or  law  of  the  place  where 
they  are  situated ;  (2)  They  can  be  transferred  by  one  person  to 
another  only  by  a  deed  or  devise  in  writing;  (3)  At  the  death  of 
their  owner  intestate  they  descend  to  his  heir  at  law;  (4)  When 
the  owner  is  unlawfully  deprived  of  their  possession  he  can  regain 
it  by  an  action  at  law.  Personal  property  comprises  those  things, 
whether  corporeal  or  incorporeal,  movable  or  immovable,  which 
are  governed  for  the  time  being  by  the  Law  of  Personal  Proj)erty. 
Their  legal  characteristics  are  these:  (1)  They  are  controlled 
ordinarily  by  the  lex  domicilii,  or  law  of  the  place  where  their 
owner  has  his  domicile;  (2)  They  can  be  transferred  without  a 
deed ;  (3)  At  the  death  of  their  owner  intestate  they  vest  in  his 
executor  or  other  personal  rei)resentative  and  not  in  his  heir; 
(4)  When  their  owner  is  deprived  of  their  possession  his  usual 


50  ELEMENTARY    LAW  §  50 

remedy  is  an  action  for  damages.  Local  statutes  and  customs 
sometimes  vary  the  details  of  these  characteristics,  but  as  a  whole 
they  serve  to  distinguish  the  articles  which  the  law  considers  real 
from  those  which  it  considers  personal. 

Rem.  The  rules  which  constitute  the  Law  of  Real  Property  and 
the  Law  of  Personal  Property  were,  for  the  most  part,  conceived 
and  established  during  the  period  when  the  real  was  considered 
as  identical  with  the  immovable,  and  the  personal  with  the  mov- 
able. Hence  the  four  characteristics  of  each  are  evidently  predi- 
cated of  them  in  these  aspects,  —  for  it  is  the  immovable  which 
is  naturally  governed  by  the  lex  rei  sitae,  which  requires  a  deed 
to  transfer  it,  which  descends  to  the  heir,  and  is  recovered  in  specie 
by  the  dispossessed  owner ;  while  it  is  the  movable  which  follows 
the  owner  wherever  he  goes  and  is  thus  governed  by  the  law  of  his 
domicile,  which  can  be  transferred  by  delivery,  passes  to  the 
executor  instead  of  the  heir,  and  if  wrongfully  taken  away  from 
the  owner  can  rarely  be  recoverable  in  specie  and  so  entitles 
him  to  damages.  But  when  the  law,  in  later  times,  was  forced  by 
social  conditions  to  recognize  certain  movables  as  possessing  the 
first  four  legal  characteristics,  and  certain  immovables  as  endowed 
with  the  other  four,  the  identity  between  real  and  immovable  and 
between  personal  and  movable  disappeared,  and  each  article 
now  is  assigned  to  its  class  by  the  legal  characteristics  which  the 
law  for  the  time  being  imputes  to  it,  and  not  by  its  natural  quali- 
ties. Thus  under  certain  circumstances  the  law  regards  land  as 
personal  property,  or  money  as  real  property.  Parties  owning 
movable  articles  may  by  agreement  make  them  real,  or  change 
the  immovable  into  personal.  And  precisely  the  same  article, 
when  falling  under  the  jurisdiction  of  one  State,  may  be  consid- 
ered personal,  and  by  the  laws  of  another  State  be  recognized  as 
real.  This  apparent  conflict  does  not,  however,  tend  to  confu- 
sion, since  it  is  only  necessary  to  ascertain  which  set  of  charac- 
teristics the  local  law  imputes  to  any  article  in  order  to  determine 
by  what  rules  it  is  to  be  controlled. 

Read:  2  Bl.  Com.,  pp.  16,  384-388; 
Rob.  Am.  Jur.,  §  117; 
Williams,  Real  Property,  pp.  1-10; 
Markby,  Elements  of  Law,  §§  129,  130; 
Barbour,  Rights  of  Persons  and  Property,  p.  300; 
Dwight,  Law  of  Persons  and  Property,  pp.  419,  420; 
Kerr,  Real  Property,  §§  27,  28; 
Rice,  Real  Property,  §§  1,  7; 
Warvelle,  Real  Property,  pp.  2-7; 
Tiffany,  Real  Property,  §  6; 
Ante,  §  26. 


§§  51,  52  CORPOREAL  REAL  PROTERTV  51 


SECTION  II 

OF   REAL   PROPERTY 

§  51.     Of  the  Classes  of  Real  Property. 

Real  property  is  of  two  classes:  (1)  Corporeal;  (2)  Incor- 
poreal. Corporeal  real  property  is  physical  and  tangible,  can  be 
visibly  occupied  and  enjoyed  by  its  owner,  and  can  be  transferred 
by  delivery  from  one  person  to  another.  Incorporeal  real  property 
is  immaterial  and  intangible,  and  though  it  can  be  visibly  enjoyed 
it  cannot  be  physically  occupied  or  delivered. 

Rem.  Real  property  is  sometimes  said  to  consist  of  lands, 
tenements,  ami  hereditaments.  This  statement,  though  true,  is 
not  an  accurate  classification  of  real  property.  Hereditament 
is  a  general  term  including  everything  that  can  be  inherited,  — 
that  is,  everything  which  can  vest  in  the  heir  by  operation  of  law 
at  the  death  of  the  present  owner.  Tenement  is  a  more  limited 
term,  denoting  such  hereditaments  as,  under  the  feudal  law, 
could  be  held  of  some  superior  lord.  Land  is  a  word  of  still 
narrower  meaning,  signifying  such  hereditaments  as  are  cor- 
poreal. 

Read:  2  Bl.  Com.,  pp.  16,  17; 
3  Kent  Com.,  Lect.  lii,  p.  401; 

Barbour,  Rights  of  Persons  and  Property,  pp.  297-299; 
Clark,  Elementary  Law,  §  70; 
Brantly,  Personal  Property,  §  4; 
Tiedeman,  Real  Property,  §  11; 
Kerr,  Real  Property,  §§  21-26; 
Rice,  Real  Property,  §§  2,  4,  5; 
Warvelle,  Real  Property,  pp.  27-33; 
Boone,  Real  Property,  §§  1,  2. 


Article  I 

OF  CORPOREAL  REAL  PROPERTY 

§  62.     Of  the  Species  of  Corporeal  Real  Property:  Land. 

Corporeal  real  property  is  of  five  species:  (1)  Land;  (2) 
Minerals ;  (3)  Waters ;  (4)  Vegetation ;  (5)  Fixtures.  Land  is 
a  definite  portion  of  the  surface  of  the  earth,  together  with  the 
space  below  it  bounded  by  lines  which  meet  at  the  center  of  the 
globe,  and  the  space  al)ove  it  bounded  by  lines  which  reach  in- 
definitely upwards.     Land  embraces  both  the  space  within  these 


52  ELEMENTARY  LAW  §  53 

lines  and  the  materials  which  occupy  the  space  while  they  are  in 
their  natural  situation,  but  if  the  materials  should  be  removed  the 
land  still  remains  complete  in  quantity  and  unchanged  in  identity 
though  its  value  may  be  impaired.  Land  may  be  owned  in 
parcels  separated  by  vertical  or  by  horizontal  boundaries.  When 
separated  by  vertical  lines  each  parcel  reaches  from  the  center  of 
the  earth  to  the  highest  heavens.  When  separated  by  horizontal 
boundaries  the  stratum  of  each  owner  is  a  distinct  article  of 
property. 

Rem.  Land  is  a  term  used  in  various  senses  in  the  law.  In 
distinguishing  between  the  species  of  corporeal  real  property  its 
meaning  is  limited,  as  above  explained.  In  a  deed,  where  terms 
are  construed  most  strongly  against  the  grantor,  "land"  carries 
all  species  of  corporeal  real  property  contained  within  the  de- 
scribed area.  In  some  ancient  forms  of  pleading  it  denoted  only 
arable  land.  In  modern  statutory  law  it  may  cover  even  personal 
property,  where  this  appears  to  have  been  the  intent  of  the 
legislature. 

Read:  2  Bl.  Com.,  pp.  17-19; 

Barbour,  Rights  of  Persons  and  Property,  pp.  296,  297; 

Andrews,  American  Law,  §§  595,  596; 

Tiedeman,  Real  Property,  §§  1,  2; 

Pingrey,  Real  Property,  §§  1,  2,  5,  6; 

Jones,  Real  Property,  §§  1592-1594; 

Warvelle,  Real  Property,  pp.  33,  34; 

Boone,  Real  Property,  §§  407,  409,  413; 

Tiffany,  Real  Property,  §§  217,  218. 


§  53.     Of  Minerals. 

Minerals  are  the  inorganic  substances  which  form,  or  once 
formed,  part  of  the  body  of  the  earth,  and  are  destitute  of  life 
and  incapable  of  supporting  it.  Among  these  are  included  all 
soils  and  rocks,  metals,  clay,  sand,  coal,  salt,  petroleum,  and 
natural  gas.  Minerals  in  their  natural  beds,  or  when  removed 
and  then  reincorporated  with  the  earth  in  the  same  or  another 
place,  are  part  of  the  land ;  but  when  permanently  severed  they 
are  personal  property.  The  ovmership  of  minerals  follows  that 
of  the  land  unless  separated  from  it  by  some  grant  or  contract. 
Where  the  minerals  belong  to  one  person  and  the  remainder  of 
the  land  to  another,  each  must  so  use  his  portion  as  not  to  inter- 
fere unreasonably  with  the  enjoyment  of  the  other. 


§  54         CORPOREAL  REAL  PROPERTY         53 

Rem.  The  relation  between  the  owner  of  the  minerals  in  situ 
and  the  owner  of  the  land  depends  on  the  form  of  the  grant  or 
contract  by  which  the  estate  in  the  minerals  is  created.  Thus 
the  grant  may  confer  a  mere  revocable  license  to  take  and  carry 
away  the  minerals;  or  a  perpetual  right  to  remove  and  appro- 
priate them ;  or  the  ownership  of  the  minerals  themselves.  In 
either  case  the  grantee  has  the  right  to  operate  the  mines  in  the 
usual  manner,  doing  no  unnecessary  injury  to  the  other  land. 
If  the  minerals  underlie  the  other  land  he  must  leave  a  sufficient 
support  to  maintain  it  in  its  natural  position.  The  upper  owner, 
on  his  part,  must  impose  no  undue  burden  on  the  overlying  land. 

Read:  Kerr,  Real  Property,  §§  90-98,  2229; 
Pingrey,  Real  Property,  §§  3,  4; 
Jones,  Real  Property,  §§  1592-1594; 
Rice,  Real  Property,  §  9; 
Warvelle,  Real  Property,  pp.  34-36; 
Boone,  Real  Property,  §§  6-6  a,  146; 
Tiffany,  Real  Property,  §§  219-222. 

§  54.     Of  Waters. 

Waters  are  divided  physically  into:  (1)  Tidal  Waters;  (2) 
VVatercourses ;  (3)  Standing  Waters;  (4)  Surface  Waters. 
Tidal  waters  are  waters  within  the  ebb  and  flow  of  the  tide,  in- 
cluding the  ocean  and  its  tributaries  as  far  up  as  the  tide  ebbs 
and  flows.  Watercourses  are  streams  of  water  having  a  definite 
origin  and  outlet,  normally  confined  within  definite  banks,  flow- 
ing in  a  perceptible  current,  and  having  fixed  and  regular  sources 
of  supply.  They  may  flow  either  upon  or  beneath  the  surface  of 
the  earth.  Standing  waters  are  bodies  of  water  of  whatever  size, 
either  wholly  stationary  or  moving  without  a  perceptible  current 
from  one  place  to  another.  Standing  waters  contained  in  the 
body  of  the  earth,  and  either  motionless  or  oozing  by  drops  from 
one  place  to  another,  are  also  called  "percolating  waters."  Sur- 
face  waters  are  waters  precipitated  from  the  atmosphere  as  rain 
or  snow,  and  either  lying  on  the  surface  of  the  earth,  or  descend- 
ing from  higher  land  to  lower  until  they  are  evaporated,  ab- 
sorbed, or  discharged  into  some  natural  stream  and  become 
incorporated  in  its  wat(Ts.  In  reference  to  their  judicial  control 
waters  are  legally  divided  into  two  classes:  (1)  Navigable;  (2) 
Non-navigable.  Navigable  wafers  are  waters  which  are  within 
the  jurisdiction  of  the  admiralty  courts,  and  .are  useful  to  the 
public  for  the  pur,yOses  of  navigation.     Formerly  tidal  waters 


54  ELEMENTARY   LAW  §  54 

only  were  considered  navigable,  but  with  the  advance  of  com- 
merce it  has  become  a  settled  doctrine  that  waters  navigable 
in  fact  are  also  navigable  waters  in  law.  Non-navigable  waters 
are  waters  which  are  too  narrow,  too  shallow,  or  too  much 
obstructed  to  be  navigable  in  fact,  and  are  consequently 
not  within  the  admiralty  jurisdiction.  Waters  are  navigable  in 
fact,  if,  in  their  natural  condition,  they  permit  the  passage  of 
boats,  rafts,  or  logs  one  or  both  ways,  either  continuously  or  at 
regularly  recurring  seasons  of  the  year.  In  reference  to  property 
rights  waters  are  also  legally  divided  into  (1)  Public  waters; 
and  (2)  Private  waters.  Public  waters  with  their  beds  belong  to 
the  State,  and  are  open  to  the  public,  subject  to  State  regulation, 
for  the  purposes  of  navigation  and  fishery.  Private  waters  with 
their  beds  belong  to  private  persons,  and  if  navigable  in  fact  are 
open  to  the  public  for  navigation,  but  not  for  fishery.  Tidal 
waters,  with  the  exception  of  marshes  and  shallow  inlets  incapable 
of  public  use,  are  always  public  waters.  According  to  the  local 
laws  of  several  of  our  American  States,  all  watercourses  and 
standing  waters,  which  are  navigable  in  fact,  are  public  waters , 
in  other  States  all  non-tidal  waters  are  of  private  ownership. 
Non-navigable  waters  unless  they  are  tide  waters,  as  well  as 
subterranean  waters  and  surface  waters,  are  always  private. 
The  boundary  line  between  public  tidal  waters  and  the  private 
upland  is,  in  most  of  our  States,  the  ordinary  high  water  mark, 
and  the  space  between  high  and  low  water  mark,  when  bare,  is 
called  the  "shore,"  and  may  be  used  by  the  public  for  passing, 
fishing,  or  gathering  sea-weed  or  wreckage.  In  a  few  States  this 
boundary  is  ordinary  low  water  mark  and  the  shore  belongs  to 
the  owner  of  the  adjoining  upland.  On  public  non-tidal  waters 
the  boundary  between  public  and  private  ownership  is  ordinary 
low  water  mark.  In  the  absence  of  some  grant  to  the  contrary 
land  bounded  on  private  waters  reaches  to  low  water  mark, 
though  where  a  private  watercourse  divides  the  land  of  two 
opposite  proprietors  the  boundary  is  presumed  to  be  the  jUum 
aqiioe,  or  thread  of  the  middle  of  the  stream. 

Rem.  In  reference  to  the  use  and  enjoyment  of  waters  the  fol- 
lowing rules  have  been  established :  (1)  All  public  waters  are  open 
to  universal  use  for  fishery  and  navigation,  subject  to  such  general 
regulations  as  the  State  may  impose ;   (2)  Riparian  owners  upon 


§  55         CORPOREAL  REAL  PROPERTY  55 

public  waters  have  a  right  of  access  to  the  waters,  and  a  right  to 
build  wharves  protruding  from  their  land  into  the  waters  in  aid 
of  navigation ;  (3)  A  private  watercourse,  running  through  or 
between  the  lands  of  different  proprietors,  belongs  exclusively  to 
neither,  and  neither  can  unreasonably  detain,  divert,  or  pollute 
the  water  to  the  injury  of  the  others,  but  a  superior  right  to  use 
the  water  for  domestic  and  agricultural  purposes  resides  in  the 
upper  proprietor  as  against  the  lower,  and  his  needs  may  be  sat- 
isfied at  the  expense  of  theirs,  while  in  some  States  a  similar  right 
to  use  the  waters  for  manufacturing,  mining,  or  irrigating  pur- 
poses is  vested  in  the  occupant  who  first  devotes  them  to  such 
use;  (4)  Private  standing  \\aters  may  be  used  as  their  owner 
pleases  unless  they  form  part  of  the  supply  of  a  watercourse,  in 
which  case  they  are  governed  by  the  foregoing  rule ;  (5)  Surface 
waters  belong  to  the  owner  of  the  land  on  which  they  fall  or  flow 
by  nature,  and  he  may  use  them  as  he  will,  but  his  right  to  protect 
his  land  against  their  natural  influx  from  other  land  is  differ- 
ently held  in  different  States,  —  some  declaring  that  he  must 
receive  the  burden  as  nature  imposes  it,  others  ruling  that  surface 
water  is  a  common  enemy,  against  which  every  person  may  de- 
fend his  own  land  by  any  method  which  does  not  increase  the 
(juantity  or  momentum  of  that  which  would  naturally  fall  or 
flow  upon  adjoining  land;  (6)  The  use  of  private  as  well  as 
public  waters  is  subject  to  regulation  by  the  State,  in  order  that 
each  owner  may  obtain  a  reasonable  benefit.  Ice  is  governed  as 
to  its  ownership  and  use  by  the  same  general  rules  as  the  water 
from  which  it  is  formed.  On  public  waters  it  is  common  to  all, 
both  for  highway  and  domestic  use;  when  severed  from  the  water 
it  becomes  personal  property. 

Read:  3  Kent,  Com.  Lect.  lii,  pp.  427-432; 
Brantly,  Personal  Property,  §  98; 
Kerr,  Real  Property,  §§  70-77,  108-111; 
Pingrey,  Real  Property,  §§  8-10,  14,  15,  207-236; 
Jones,  Easements,  §§  725-786; 
Rice,  Real  Property,  §  6; 

Kircliwey,  Readings  on  the  Law  of  Real  Property,  pp.  407-409; 
Warvelle,  Real  Property,  pp.  42-47; 
Boone,  Real  Property,  §§  4-4(7,  417-419,  421; 
Tiffany,  Real  Property,  §§  264-270,  297-300,  302,  303. 


§  55.     Of  Vegetation:  Plants:  Crops. 

The  vegetable  productions  of  the  earth  constitute  its  vesture. 
Scientifically,  they  are  divided  into  trees,  shrubs,  and  herbs. 
Trees  and  shnibs  have  a  permanent  stem  as  well  as  a  permanent 
root,  their  fruit  and  sometimes  their  foliage  being  transitory 


56  ELEMENTARY   LAW  §  55 

Herbs  may  or  may  not  have  a  perennial  root,  but  their  stems, 
leaves,  and  fruit  are  periodically  renewed.  Legally  the  vesture 
of  the  earth  is  divided  into  plants  and  crops.  Plants  include 
the  permanent  portions  of  trees,  shrubs,  and  herbs.  Crops  em- 
brace the  fruit  of  trees  and  shrubs,  the  stems,  leaves,  flowers,  and 
fruit  of  herbs  which  have  a  perennial  root,  and  the  roots  of  herbs 
when  perishable.  This  legal  distinction  is  made  because  plants, 
being  permanent,  are  usually  regarded  as  parcel  of  the  land  and 
consequently  real  property,  while  crops,  being  destined  by  na- 
ture for  removal  from  the  land  and  consumption  by  men  or  ani- 
mals, partake,  even  when  growing,  of  the  character  of  personal 
property.  Plants  are  of  two  classes:  (1)  Timber  trees;  (2) 
Trees  and  shrubs  which  are  not  timber.  Timber  trees  are  those 
which  are  fit  for  building  and  repairing  houses  or  vessels.  In 
England  the  law  recognized  the  oak,  the  ash,  the  elm,  and  in 
some  localities  the  beech  and  other  durable  trees  as  timber.  In 
this  country  the  local  custom,  based  on  fitness  for  building  as 
demonstrated  by  experience,  furnishes  the  test  of  timber.  Tim- 
ber trees  have  a  peculiar  sanctity  in  the  law,  and  are  protected  by 
special  rules,  but  trees  and  shrubs  which  are  not  timber  are  gov- 
erned by  the  ordinary  law  of  plants.  Crops  are  also  of  two  classes : 
(1)  Fructus  naturales;  (2)  Fructus  industriales.  Fructus 
naturales  are  those  crops  which  are  produced  by  nature,  sub- 
stantially without  the  aid  of  man.  These  while  still  growing, 
unless  severed  by  contract  from  the  land,  as  when  planted  by  a 
lawful  temporary  occupant,  are  a  portion  of  the  realty,  descend 
or  are  transferred  with  the  inheritance,  and  are  not  subject  to 
attachment  or  execution  apart  from  the  land.  When  mature  and 
ready  for  harvest  they  are  personal,  except  for  such  purposes  as 
require  them  to  be  considered  real  in  order  to  protect  the  rights 
of  persons  who  may  be  interested  in  them.  Fructus  industriales 
are  those  crops  whose  existence  or  usefulness  depend  largely 
on  human  labor.  These,  when  planted  by  the  owner  of  the  land 
and  still  unsevercd,  are  regarded  as  real  property,  and  pass  with 
the  land,  though  subject  to  a  separate  attachment  and  execution, 
or  to  sale  or  mortgage  apart  from  the  land ;  and  if  the  owner  dies 
intestate  will  vest  in  the  personal  representative,  not  in  the  heir. 
When  planted  by  persons  other  than  the  owner  of  the  land  they 
are  personal  property,  both  before  and  after  their  maturity. 


§  55         CORPOREAL  REAL  PROPERTY  57 

Rem.  The  ownership  of  plants,  while  standing  and  growing, 
follows  that  of  the  land,  unless  the  owner  of  the  land  has  sepa- 
rated them  from  the  land  by  some  grant  or  agreement.  Thus 
trees  whose  trunks  are  wholly  on  the  soil  of  one  proprietor  belong 
entirely  to  him,  although  their  branches  and  fruit  may  over- 
hang and  their  roots  may  under-run  the  land  of  adjoining  owners, 
and  are  removable  by  them.  Trees  growing  in  a  boundary  line 
belong  to  both  proprietors,  and  except  in  extraordinary  emergen- 
cies neither  can  injure  them  to  the  damage  of  the  other.  Trees 
in  a  highway  are  the  property  of  the  owner  of  the  land,  but  are 
subject  to  pruning  or  removal  when  re(iuired  by  travel.  Trees 
sold  to  be  cut  at  once  are  regarded  by  the  local  law  of  some  States 
as  the  personal  property  of  the  buyer;  under  the  laws  of  other 
States  they  remain  the  property  of  the  owner  of  the  land  till  ac- 
tually removed.  Trees  sold  to  be  cut  at  some  indefinite  future  time 
are  still  real  j)roperty;  but  whether  they  belong  to  the  buyer  or 
the  seller  depends  on  the  sufficiency  of  their  contract  to  pass 
the  title  to  the  realty.  Trees  wrongfully  cut  and  removed  from  the 
land  belong  to  the  wrongdoer  as  against  all  persons  but  the  true 
owner.  Fructus  naturalcs,  whether  still  standing  or  already  cut 
and  removed,  are  the  property  of  that  owner  of  the  land  in  whom, 
while  they  were  growing,  the  right  to  immediate  possession  of  the 
land  resided.  Fructus  industriales,  while  growing,  are  the  prop- 
erty of  the  current  lawful  possessor  of  the  land  though  planted  by 
a  trespasser,  but  if  harvested  and  removed  by  the  intruder  they 
belong  to  him.  Annual  crops  planted  by  a  tenant  for  an  indefi- 
nite term  are  his  although  his  term  may  unexpectedly  expire  before 
the  harvest ;  and  in  some  of  our  States  the  same  ownership  is 
recognized  in  tenants  whose  estates  are  of  certain  and  definite 
duration.  Tenants  hiring  land  on  shares  have  an  interest  in  the 
crop  in  conmion  with  the  owner  of  the  land  from  the  time  of 
planting  until  it  is  finally  divided  ;  but  employees  receiving  a  share 
of  the  crop  as  their  wages,  or  occupants  paying  a  share  of  the 
crop  as  rent,  are  not  tenants  in  common  with  the  owner  of  the 
land  at  any  time;  the  employee  in  the  first  case,  and  the  landlord 
in  the  second,  having  no  property  in  the  crop  until  it  is  harvested 
and  divided. 

Re.\d:  2  HI.  Com.,  p.  281; 

Brantly,  Personal  Property,  §i5  34-39; 
Tiedeman,  Real  Property,  §§  S-10,  201; 
Kerr,  Real  Proi)crty,  §§  50-59,  1365-1374; 
Pingrcy,  Real  Property,  §§  7,  18,  42,  43,  601-615; 
Jones,  Real  Property,  §§  1600-1634; 
Rice,  Real  Property,  §  8; 
Warvello,  Real  Property,  pp.  36,  37,  91,  92; 
Boone,  Real  Property,  §§  5-5  a,  414-416; 
Tiffany,  Real  Property,  §§  223-230. 


58  ELEMENTARY   LAW  §  56 

§  56.     Of  Fixtures. 

A  fixture  is  an  article  of  corporeal  personal  property  which  has 
been  attached  to  land  under  such  circumstances  that  the  law  re- 
gards it  as  having  become  temporarily  or  permanently  real. 
An  article  of  corporeal  personal  property  attached  to  land  is  now 
usually  presumed  by  law  to  continue  personal,  and  to  be  remov- 
able by  its  owner,  and  to  be  capable  of  being  sold  or  mortgaged 
or  taken  in  execution  apart  from  the  land.  But  in  the  three  fol- 
lowing cases  this  presumption  is  reversed  and  the  article  is  con- 
sidered real:  (1)  Where  the  attachment  is  made  by  virtue  of  an 
agreement,  between  the  owner  of  the  article  and  the  owner  of 
the  land,  that  the  article  when  attached  shall  become  real;  (2) 
Where  the  attachment  is  wrongfully  made  by  the  owner  of  the 
article  without  the  consent  of  the  owner  of  the  land,  and  the 
article  thereby  becomes  forfeited  to  the  land ;  (3)  Where  the  at- 
tachment brings  the  attached  article,  either  directly  or  indirectly 
into  persisting  physical  relations  with  the  land  for  the  purpose  of 
improving  the  land  or  of  promoting  its  more  convenient  use.  In 
this  third  case  the  attachment  is  called  annexation,  and  has  two 
requisites:  (a)  The  mode  of  attachment  must  be  definite  and 
permanent,  as  distinguished  from  a  mere  deposit  of  the  article 
in  the  land,  or  its  use  on  the  land,  or  its  transit  across  the  land; 
{b)  The  purpose  and  effect  of  the  attachment  must  be  to  render 
the  article  subservient  to  the  land,  as  distinguished  from  an 
attachment  made  for  the  sake  of  the  article,  as  to  conceal  it  or 
preserve  it  or  steady  it  while  in  use.  Such  annexation  may  con- 
sist in  connecting  the  article  with  the  soil  by  artificial  fastenings, 
or  by  imbedding  it  in  the  land,  or  by  resting  its  weight  upon  the 
surface ;  and  may  either  be  direct  as  where  the  article  in  question 
is  itself  brought  into  actual  contact  with  the  land,  or  be  indirect 
as  where  the  article,  though  not  itself  upon  the  land,  is  tributary 
to  some  superior  article  which  is  in  contact  with  the  land,  like 
the  keys  of  a  building  or  the  loose  portions  of  fixed  machinery. 
The  presumption  arising  from  annexation  may  be  rebutted  by 
proof  of  an  agreement,  between  the  owner  of  the  land  and  the 
owner  of  the  article,  that  notwithstanding  the  annexation  the 
article  should  continue  personal,  or  by  showing  that  according 
to  a  local  custom  annexation  does  not  change  the  article  from 
personal  to  real,  or  by  evidence  that  the  owner  of  the  land  is 


§  56        CORPOREAL  REAL  PROPERTY  59 

estopped  to  claim  that  the  article  has  become  a  part   of  his 
estate. 

Rem.  Whether  an  article  of  corporeal  personal  property 
which  has  been  attached  to  land  can  be  removed  by  the  attacher. 
against  the  will  of  tlie  owner  of  the  land,  is  a  question  which  can- 
not be  answered  simply  by  determining  whether  the  article  con- 
tinues personal  after  the  attachment,  or  has  thereby  been  made 
a  part  of  the  realty  itself.  If  the  article  continues  personal  it  is 
removable  by  the  attacher  as  a  matter  of  course  unless  he  has, 
by  contract  or  otherwise,  released  or  forfeited  his  right  to  its  pos- 
session. But  though  it  has  become  real  it  may,  under  modern 
rules,  be  in  many  cases  also  removable  at  the  will  of  the  attacher. 
According  to  the  maxim  of  the  ancient  law,  Quicquid  plantatur 
solo,  cedit  solo,  the  union  of  an  article  of  corporeal  personal  prop- 
erty with  the  soil  made  it  a  permanent  portion  of  the  realty  unless 
the  owner  of  the  realty  himself  chose  to  sever  it.  This  maxim 
worked  no  special  hardship  in  an  agricultural  age  and  community, 
where  buildings,  fences,  and  trees  constituted  the  principal  addi- 
tions to  the  soil ;  but  was  entirely  unsuited  to  the  commercial  life 
of  towns,  where  temporary  tenants  were  obliged  to  attach  valua- 
ble articles  to  rented  land  for  their  mercantile,  manufacturing,  or 
commercial  use.  Annexation  to  the  soil,  though  still  indicating 
that  the  article  had  changed  its  character  from  personal  to  real, 
then  no  longer  served  as  a  test  of  its  removability,  but  gave  place 
to  the  new  doctrine  that  the  intention  of  the  owner  of  the  article 
annexed  and  of  the  owner  of  the  land  to  treat  the  article  as 
removable  or  irremovable,  as  manifested  by  their  acts  and  rela- 
tions at  the  time  of  the  annexation,  and  by  dieir  subsequent  con- 
duct in  reference  to  the  annexed  article,  must  be  regarded  as 
determining  the  existence  or  non-existence  of  the  right  of  the 
annexer  to  remove  it.  Under  this  doctrine  the  following  circum- 
stanc-es  are  held  by  the  courts  as  conclusively  establishing  the 
right  of  removal:  (1)  Where  the  right  of  removal  was  conferred 
upon  the  annexer  by  a  valid  agreement  now  binding  the  parties 
interested  in  the  land ;  (2)  Where  the  right  of  removal  is  based 
upon  a  local  or  business  custom,  known  to  and  obligatory  upon 
all  jiersons  who  might  be  prejudiced  by  the  removal ;  (3)  Where 
the  objector  is  estopped  by  his  own  fraud  or  wrong  from  denying 
the  right  of  the  aimexer  to  remove  the  article;  (4)  Where  the 
annexer  of  the  article  is  a  vendee  in  possession  of  the  land  to 
whom  the  owner  now  refuses  to  convey;  (5)  Where  the  annexer 
is  a  tenant  for  years  who  has  attached  the  article  to  the  land  for 
his  own  use  in  his  trade,  or  in  his  domestic  and  in  some  cases  in 
his  agricultural  operations,  and  has  attempted  to  remove  the  arti- 
cle before  or  at  the  termination  of  his  tenancy,  and  can  do  so 


60  ELEMENTARY    LAW  §  56 

without  the  destruction  of  the  article  or  inflicting  serious  injury 
upon  the  land.  On  the  other  hand,  the  following  circumstances 
show  conclusively  that  there  is  no  right  of  removal:  (1)  Where 
the  article  was  wrongfully  annexed  to  the  land  by  the  owner  of  the 
article  without  the  consent  of  the  owner  of  the  land :  (2)  Where 
the  article  was  annexed  to  the  land  by  a  tenant  who  has  abandoned 
the  land  or  taken  a  new  lease  thereof  without  removing  or  re- 
serving it;  (3)  Where  the  article  was  annexed  by  a  vendee  in 
possession  of  the  land  who  now  refuses  to  complete  his  purchase ; 
(4)  Where  the  article  was  annexed  by  the  owner  of  the  land  who 
has  since  sold  or  mortgaged  the  land  without  excepting  the  arti- 
cle from  the  operation  of  his  deed ;  (5)  Where  the  article  was 
annexed  by  the  owner  of  the  land  who  has  since  died  without 
appropriating  the  article  to  his  personal  estate ;  (6)  Where  the  arti- 
cle was  rightfully  annexed  by  its  owner  for  the  purpose  of  trans- 
ferring his  property  therein  to  the  owner  of  the  land ;  (7)  Where 
the  annexed  article  cannot  be  removed  without  destroying  its 
own  value  and  that  of  the  materials  of  which  it  is  composed ;  (8) 
Where  the  annexed  article  cannot  be  removed  without  causing 
irreparable  injury  to  the  land ;  (9)  Where  custom  or  agreement 
or  acts  amounting  to  an  estoppel  forbid  the  claimant  to  remove 
the  article.  In  cases  where  none  of  these  conclusive  circum- 
stances occur,  other  facts  and  conditions  analogous  to  the  fore- 
going, but  less  strong  and  convincing,  are  resorted  to  by  the 
courts  to  ascertain  the  intention  of  the  annexer  and  the  owner  of 
the  land  in  making  and  continuing  the  annexation,  and  the  conse- 
quent existence  or  non-existence  of  a  present  right  of  removal. 
Annexed  articles,  where  lawfully  removed,  resume  their  charac- 
ter of  personal  property.  The  annexed  articles,  concerning  which 
the  questions  just  discussed  have  most  frequently  arisen  in  the 
courts,  are  buildings  with  their  necessary  parts,  fences,  the  per- 
manent appliances  of  railroad  and  other  corporations,  plants, 
manure  dropped  on  the  land,  machinery,  and  fixed  articles  of 
trade  or  household  furniture. 

Read:  Barbour,  Rights  of  Persons  and  Property,  pp.  587-590; 
Walker,  American  Law,  §  135; 
Andrews,  American  Law,  §  597; 
Clark,  Elementary  Law,  §  71 ; 
Brantly,  Personal  Property,  §§  8-33; 
Tiedeman,  Real  Property,  §§  3-7; 
Smith,  Personal  Property,  §§  9-12,  18; 
Kerr,  Real  Property,  §§  65-69,  83-88,  104-107,  112-147; 
Pingrey,  Real  Property,  §§  44-83; 
Jones,  Real  Property,  §§  1665-1769; 
Rice,  Real  Property,  §§  10,  12,  14-19,  200; 
Warvelle,  Real  Property,  pp.  37-42; 
Boone,  Real  Property,  §§  7,  8  a-9 /,  12,  424; 
Tiffany,  Real  Property,  §§  231-245,  262,  263,  312. 


§  57  INCORPOREAL  REAL   PROPERTY  61 


Article  II 

/OF  INCORPOREAL  REAL  PROPERTY 

§  57.     Of  Incorporeal  Hereditaments. 

Incorporeal  property  consists  mainly  of  rights  which  either  issue 
out  of,  or  relate  to,  or  result  in  the  enjoyment  of  corporeal  prop- 
erty; or  which  entitle  their  owner  to  some  service,  profit,  or 
benefit  from  the  persons  against  whom  the  right  subsists;  or 
which  confer  upon  their  owner  some  new  status  or  capacity  which 
is  presumed  to  be  to  his  advantage.  An  instance  of  a  right  issuint) 
out  of  corporeal  property  is  the  right  which  one  tract  of  land  has 
to  be  supported  in  its  natural  position  by  another;  of  a  right  re- 
lated to  corporeal  property  is  the  right  of  one  person  to  bathe  in 
waters  belonging  to  another;  of  a  right  resulting  in  the  cnjoymeiit 
of  corix)rcal  property  is  the  right  of  one  person  to  pasture  cattle 
in  the  land  of  another;  of  a  right  entitling  its  owner  to  some  ser- 
vice, profit,  or  benefit  from  another  person  is  the  right  which  one 
may  have  to  the  performance  of  a  contract  or  the  discharge  of  an 
official  duty  by  the  other;  of  a  right  conferring  a  new  status  is 
the  right  granted  to  a  group  of  individuals  to  be  a  corporation. 
These  rights  are  very  numerous,  and  occupy  a  most  important  po- 
sition in  society  and  therefore  in  the  law.  They  may  be  real  or 
personal,  but  when  so  created  as  to  be  governed  by  the  law  of 
Real  Property  they  are  inheritable  and  are  called  Incorporeal 
Hereditaments.  The  principal  species  of  incorporeal  heredita- 
ments now  known  to  our  law  are  these :  (1)  Commons;  (2)  Ad- 
vowsons;  (3)  Tithes;  (4)  Corodies;  (5)  Pensions;  (6)  Offices; 
(7)  Dignities;  (8)  Annuities;  (9)  Rents;  (10)  Franchises; 
(11)  Lateral  and  Horizontal  Support  of  Land;  (12)  Party 
Walls;  (13)  Pews;  (14)  Burial  Rights;  (15)  Light  and  Air; 
(l«i)  Aquatic  Rights;    (17)  AVays. 

Rem.  Although  the  incorporeal  hereditaments  which  the  law 
recognizes  can  be  enumerated,  they  seem  incapable  of  any 
logical  classification  according  to  their  attributes.  They  are 
however  subject  to  certain  divisions  which  affect  their  legal 
c|ualities.  Thus  one  division  is  between  hereditaments  which  au- 
thorize their  owner  to  take  a  portion  of  the  substance  of  the  land 
of  another  for  his  own  use,  as  to  pasture  cattle,  cut  wood,  or  catch 
fish  thereon,  and  which  are  called  profits  d,  prendre;  and  heredit- 


62  ELEMENTARY   LAW  §  57 

aments  whose  exercise  leaves  the  substance  of  the  land  in  which 
they  are  enjoyed  intact.  Another  division  distinguishes  between 
hereditaments  which  issue  out  of  land  and  give  to  the  owner  of 
the  land,  because  he  is  its  owner,  a  privilege  in  other  land,  and 
hereditaments  which  belong  to  a  person  irrespective  of  his 
ownership  of  other  land ;  the  former  being  known  as  rights  ap- 
jmrtenant;  the  latter  as  rights  in  gross.  A  third  division  is  into 
affirmative  hereditaments  and  negative  hereditaments ;  the  affirm- 
ative authorizing  its  owner  to  do  some  act  in  another's  land;  the 
negative  forbidding  the  owner  of  the  land  to  use  it  in  some  par- 
ticular manner.  A  fourth  division  is  between  continuous  and 
non-cantinumis  hereditaments;  a  continuous  hereditament  being 
one  which  having  been  once  exercised  by  its  owner  continues  in 
practical  operation  indefinitely  without  human  aid,  like  a  party 
wall ;  a  non-continuous  hereditament,  on  the  contrary,  being  one 
whose  enjoyment  consists  in  transient  acts  at  uncertain  intervals, 
like  a  right  of  way.  Every  incorporeal  hereditament  stands  on 
one  side  or  the  other  of  these  dividing  lines,  and  is  either  a  profit  a 
prendre  or  not  a  profit  a  prendre,  either  appurtenant  or  in  gross, 
either  affirmative  or  negative,  either  continuous  or  non-continuous. 
An  incorporeal  hereditament  which  is  not  a  profit  a  prendre  and 
is  appurtenant,  and  is  exercisable  within  or  over  the  land  of 
another,  is  called  an  easement.  To  every  true  easement  two 
landed  estates  are  necessary:  (1)  The  dominant  estate  to  which 
the  hereditament  is  appurtenant;  (2)  The  servient  estate  in  or 
over  which  the  hereditament  is  to  be  enjoyed.  Easements  may 
be  continuous  or  non-continuous,  affirmative  or  negative.  A 
servitude  is  an  incorporeal  hereditament  imposing  a  burden  upon 
the  land  of  another,  but  as  it  may  be  held  in  gross  or  as  appur- 
tenant, it  is  not  in  every  case  an  easement. 

Read:  2  Bl.  Com.,  pp.  20,  21; 

3  Kent  Com.,  Lect.  lii,  pp.  401,  402; 

Washburn,  Easements,  ch.  i,  sec.  i; 

Holland,  Jurisprudence,  pp.  163,  164-169; 

Markby,  Elements  of  Law,  §§  400-430; 

Walker,  American  Law,  §  132; 

Andrews,  American  Law,  §§  606-614; 

Clark,  Elementary  Law,  §§  189,  191; 

Tiedeman,  Real  Property,  §§  587,  588; 

Kerr,  Real  Property,  §§  78,  2174,  2175,  2208-2213; 

Pingrey,  Real  Property,  §§  84,  85,  129-141; 

Jones,  Easements,  §§  1-62; 

Rice,  Real  Property,  §§  181-185; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp  15-27,  36,  37; 

Warvelle,  Real  Property,  pp.  49-51,  52-55,  61,  62; 

Boone,  Real  Property,  §§  135-135  a; 

Tiffany,  Real  Property,  §§  4,  5,  304,  305. 


§  58  INCORPOREAL   REAL   PROPERTY  63 

§  58.    Of    the    Creation    and    Extinguishment    of    Incorporeal 

Hereditaments. 

An  incorporeal  hereditament,  being  less  than  the  supreme 
dominion  over  the  property  or  person  against  whom  it  is  exer- 
cised, must  always  arise  from  the  actual  or  presumed  concession 
of  the  person  in  whom  such  supreme  dominion  resides;  and 
being  also  intangible  and  incapable  of  physical  delivery  must 
be  created  by  some  form  of  conveyance  of  which  delivery  does  not 
constitute  a  necessary  part.  To  a  conveyance  of  this  kind  the 
law  gives  the  name  of  a  grant;  and  hence  incorporeal  property 
is  said  to  lie  in  grant  as  corporeal  is  said  to  lie  in  livery.  Grants 
of  incorporeal  hereditaments  are  of  three  classes:  (1)  Express 
Grants;  (2)  Implied  Grants;  (3)  Presumed  Grants.  An  ex- 
press  grant  is  one  made  by  sufficient  words  as  required  by  the 
local  law.  An  implied  grant  is  not  made  in  express  words,  but  is 
inferred  by  law  from  the  express  grant  of  other  property  to  the 
enjoyment  of  which  the  incorporeal  hereditament  is  reasonably 
necessary.  A  presumed  grant  is  one  which,  though  never  made  in 
words  nor  inferable  from  the  express  grant  of  other  property, 
has  been  so  long  in  the  adverse  enjoyment  of  the  claimant  of  the 
hereditament,  with  the  knowledge  of  the  person  from  whom  it 
must  have  been  derived,  that  the  law  does  not  now  suffer  it  to  be 
disputed.  An  incorporeal  hereditament  can  be  extinguished : 
(1)  By  the  expiration  of  the  time  or  purpose  for  which  it  was  ex- 
pressly limited  in  the  grant;  (2)  By  the  cessation  of  the  necessity 
on  account  of  which  it  was  imjjlied  by  law ;  (3)  By  its  permanent 
abandonment  by  its  owner;  (4)  By  becoming  the  property  of  the 
person  from  whom  it  was  derived  and  merging  in  his  superior 
estate. 

Rem.  An  incorporeal  hereditament  created  by  express  grant 
is  defined  and  described  by  the  terms  of  the  grant  itself.  One 
created  by  implied  grant  is  measured  by  the  necessity  from  which 
it  is  inferred.  A  person,  for  example,  who  conveys  to  another  the 
rear  portion  of  a  lot,  retaining  the  j)art  wliich  bounds  on  the 
highway  for  liimself,  is  suj)pose(l  thereby  to  grant  a  riglit  of  access 
to  the  highway  across  his  own  land  as  incidental  to  the  convey- 
ance of  the  rear,  since  otherwise  the  grantee  of  the  rear  could  not 
enjoy  that  portion  of  the  land.  But  if  the  grantee  of  tlie  rear 
portion  has  other  means  of  reaching  the  highway,  or  afterwards 
acquires  them,  the  necessity  ceasing,  the  right  also  expires.    An 


64  ELEMENTARY   LAW  §  59 

incorporeal  hereditament  created  by  presumed  grant  is  defined 
by  the  character  and  extent  of  the  long-continued  enjoyment 
from  which  the  grant  is  presumed.  If  this  enjoyment  has  not 
been  uniform  in  extent  and  character  no  grant  is  presumed,  and 
no  hereditament  exists.  The  title  acquired  by  presumed  grant 
is  called  a  title  by  prescription. 

Read:  Tiedeman,  Real  Property,  §§  597-606; 

Kerr,  Real  Property,  §§  2176,  2177,  2231-2236; 
Pingrey,  Real  Property,  §§  142-206; 
Jones,  Easements,  §§  80-203,  834-871; 
Rice,  Real  Property,  §§  186-195,  202,  204; 
Warvelle,  Real  Property,  pp.  55-57,  60; 
Boone,  Real  Property,  §§  136-140,  147,  148; 
Tiffany,  Real  Property,  §§  16,  315-333,  342-353. 


§  59.     Of  Commons. 

A  common  is  the  right  of  one  person  to  take  a  profit  from  the 
land  of  another.  It  is  a  true  profit  a  prendre,  and  its  enjoyment 
always  diminishes  the  quantity  of  the  substance  or  the  product 
of  the  servient  land.  Commons  are  of  various  kinds :  (1)  Com- 
mon of  pasture,  or  the  right  to  pasture  cattle  on  the  land  of  an- 
other; (2)  Common  of  piscary,  or  the  right  to  catch  fish  in  the 
waters  of  another;  (3)  Cmnvion  of  turbary,  or  the  right  to  take 
turf  or  peat  from  the  land  of  another;  (4)  Common  of  estovers, 
or  the  right  to  take  wood  from  the  land  of  another  for  fuel  or 
repairs ;  (5)  Common  of  minerals,  or  the  right  to  take  coal,  stone, 
sand,  clay,  and  other  materials  from  the  land  of  another.  A 
common  may  be  either  appurtenant  or  in  gross,  but  being  a  profit 
a  prendre  it  is  never  an  easement;  is  always  affirmative  as  dis- 
tinguished from  negative;    and  is  usually  non-continucnis. 

Rem.  In  England  commons  were  an  important  feature  of  the 
feudal  manor  and  vested  in  the  manorial  tenants  as  incidental  to 
their  tenancy  of  the  arable  land,  permitting  them  to  draw  from 
the  common  waste  land  of  the  manor  their  supplies  of  pasturage, 
wood,  fish,  building  materials,  etc.  In  this  country  they  are  far 
less  frequent  and  of  minor  consequence,  but  many  instances  of 
them  occur  and  are  governed  by  the  ancient  rules. 

Read:  2  Bl.  Cora.,  pp.  32-35; 
3  Bl.  Com.,  pp.  237-241 ; 
3  Kent  Com.,  Lect.  lii,  pp.  403-419; 
1  Coke,  p.  122a; 
Digby,  History  of  the  Law  of  Real  Property,  pp.  134-145; 


§  60  INCORPOREAL  REAL   PROPERTY  65 

Clark,  Elementary  Law,  §  190; 

Tiedeman,  Real  Property,  §§  591-593; 

Kerr,  Real  Property,  §§  2178-2196; 

Pingrey,  Real  Property,  §§86-102; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  28-30; 

Warvelle,  Real  Property,  p.  61 ; 

Tiffany,  Real  Property,  §§  334-339. 

§  60.     Of  Advowsons:  Tithes:  Corodies:  Pensions. 

Advowsons,  tithe.s,  corodies,  and  pensions  were  rights  arising 
under  the  ecclesiastical  system  recognized  by  the  English  com- 
mon law.  A  benefice  is  the  right  of  a  clergyman  to  perform  re- 
ligious functions  in  a  parish,  and  to  enjoy  the  tithes  and  other 
emoluments  derived  therefrom.  A  tithe  is  the  right  of  the  incum- 
bent of  a  benefice  to  the  tenth  part  of  the  yearly  income  of  his 
parishioners,  whether  derived  from  lands,  or  from  the  stock  upon 
lands,  or  from  their  personal  industry.  An  advowson  is  the  right 
of  one  person  to  present  another  to  a  benefice.  To  ^present  to  a 
benefice  is  to  appoint  the  clergyman  who  is  to  perform  the  reli- 
gious functions  and  receive  the  emoluments.  The  advowson 
usually  belongs  to  the  owner  of  the  land  in  which  the  parish  is 
situated,  but  may  be  transferred  to  others;  and  as  a  means  of 
providing  for  dependent  relatives  is  often  of  great  pecuniary  value. 
A  corody  is  the  right  of  one  j)erson  to  receive  sustenance  from  an- 
other on  account  of  the  ownership,  by  that  other,  of  some  cor- 
poreal hereditament.  A  pension  is  the  right  of  one  person  to 
receive  a  stipend  in  money  from  another  on  account  of  some  eccle- 
siastical or  political  relationship  between  them. 

Rem.  These  incorporeal  hereditaments  in  their  precise  defi- 
nition are  unknown  in  this  country,  where  the  rights  of  pastors 
and  parishioners  are  governed  by  the  ordinary  law  of  contracts, 
as  interpreted  by  the  canon  law  of  the  ecclesiastical  body  to  which 
they  belong.  The  rules  governing  these  hereditaments,  how- 
ever, furnish  analogies  to  our  law  in  the  regulation  of  ecclesias- 
tical affairs,  and  in  administering  gifts  of  lands  in  deeds  and  wills 
to  third  persons  to  secure  tiie  suj)jK)rt  of  the  dependants  of  the 
testator  or  grantor. 
Read:  1  Bl.  Com.,  pp.  384-395; 

2  Bl.  Com.,  pp.  21-32,  49,  276-280; 

3  Bl.  Com.,  pp.  88-92; 

1  Coke,  17  />-18  n,  1 19  />-120  a,  344  a-345  6; 
Clark,  Elementary  Law,  §  190; 

Kirchwey,  Readings  on  tlie  Law  of  Real  Property,  pp.  27,  28,  33. 

6 


66  ELEMENTARY  LAW  §  61 

§  61.     Of  Offices:  Dignities. 

An  office  is  the  right  to  perform  certain  oflScial  acts  and  to  re- 
ceive the  fees  and  emoluments  arising  therefrom.  Under  the 
laws  of  England  an  office,  even  in  cases  where  the  duties  were  of 
a  public  nature,  could  be  granted  to  a  person  and  his  heirs,  and 
thus  vest  in  them  as  an  incorporeal  hereditament.  In  this  country 
an  office  is  rather  a  status  than  an  article  of  property  or  a  con- 
tract, though  it  may  endure  for  life ;  and  is  conferred  by  popular 
election  or  governmental  appointment,  not  by  private  grant.  A 
dignity  is  the  right  to  a  title  of  honor  or  nobility.  In  former 
times  dignities  were  annexed  to  estates  in  lands  granted  by  the 
crown,  and  descended  with  the  estates  to  the  heirs  of  the  grantee, 
but  the  British  sovereign  now  confers  them  without  a  grant  of 
lands,  and  can  make  them  personal  or  inheritable  as  he  pleases. 
Our  own  government  is  forbidden  by  the  Federal  Constitution  to 
bestow  them  upon  any  person ;  and  no  public  functionary  of  the 
United  States  is  permitted  to  receive  them  from  a  foreign  sov- 
ereign without  the  express  consent  of  Congress.  A  private  Ameri- 
can citizen  is  at  liberty  to  obtain  them  by  purchase  or  otherwise, 
and  is  protected  in  their  enjoyment  by  the  general  laws  against 
libel  and  false  personation,  as  he  would  be  against  the  misuse 
of  his  private  name. 

Rem.  An  appointment  to  office  assumes  that  a  vacancy  exists 
and  that  the  appointee  is  eligible  or  will  become  so  before  his  ap- 
pointment would  legally  take  effect.  A  person  legally  appointed 
to  office  is  obliged  to  accept  it  and  commence  to  perform  his  duties, 
but  may  subsequently  resign  or  be  removed.  A  person  whose 
appointment  is  defective  in  form  but  if  formally  correct  would  be 
lawful,  and  who  enters  upon  the  duties  of  his  office,  is  an  officer  de 
facto,  and  his  official  acts  are  valid  as  to  all  persons  except  the 
government  itself.  No  right  vests  in  an  official  salary  until  it  is 
actually  earned,  nor  can  it  be  attached  or  garnisheed  by  credit- 
ors of  the  incumbent.  Neglect  of  official  duty  and  abuse  of  official 
authority  furnish  causes  for  civil  action  or  of  criminal  prosecu- 
tion against  officers  of  lower  rank,  and  for  proceedings  in  im- 
peachment against  those  of  superior  dignity. 

Read:  1  Bl.  Com.,  pp.  396-407; 

2  Bl.  Com.,  pp.  36,  37; 
Rob.  Am.  Jur.,  §§  46-53; 

3  Kent  Com.,  Lect.  lii,  pp.  454,  458; 
1  Coke,  16  6,  69  6; 


§  62  INCORPOREAL  REAL   PROPERTY  67 

Cooley,  Const.  Law,  pp.  113,  217; 

Clark,  Elementary  Law,  §  190; 

Pingrey,  Rftal  Property,  §§  103,  104; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  31,  32. 


§  62.     Of  Annuities:  Rents. 

An  annuity  is  the  right  of  one  person  to  receive  a  yearly  stipend 
in  money  from  another  on  account  of  some  personal  obligation 
which  that  other  person  has  assumed,  or  which  has  been  imposed 
upon  him  by  the  act  of  a  third  party  or  of  the  law.  It  resembles 
a  pension  except  in  the  ecclesiastical  or  political  character  of 
the  party  against  whom  the  right  subsists.  If  granted  to  a  man 
and  his  heirs  it  is  an  incorporeal  hereditament.  A  rent  is  the 
right  of  one  person  to  receive  a  yearly  profit,  in  money,  produce, 
or  services,  out  of  lands  belonging  to  another.  It  may  be  payable 
annually,  or  at  alicjuot  parts  of  a  year,  or  in  fixed  periods  com- 
posed of  several  years.  It  must  not  consist  of  the  substance  of 
the  land  like  a  common,  but  having  been  paid  or  taken  must 
leave  the  land  entire. 

R&m.  The  rent  above  described  is  not  the  same  thing  as  the 
rent  paid  in  this  country  to  a  landlord  by  his  tenant  for  the  use  of 
land  or  buildings.  The  latter  is  the  result  of  a  contract,  like  any 
other  debt,  and  may  be  real  or  personal.  Under  the  old  English 
land  system  when  lands  were  sold  or  granted,  the  grantee  instead 
of  paying  a  gross  price  agreed  to  render  to  the  grantor  a  contin- 
uous annual  service  or  tiling  of  value,  in  default  of  which  his 
estate  in  the  land  was  forfeited,  and  this  annual  service  or  pay- 
ment was  called  rent.  A  vestige  of  this  may  be  found  in  the 
ground  rents  still  existing  in  some  of  our  older  cities.  These 
rents  n  England  were  of  various  kinds:  (1)  Rent  service,  where 
the  yearly  profit  consisted  wholly  or  in  part  of  personal  ser- 
vices :  (2)  Rent  charge,  where  the  yearly  profit  was  charged  ujion 
the  land  in  favor  of  some  person  other  than  the  grantor ;  (3)  Rent 
secic,  or  drij  rent,  where  the  owner  of  the  rent  had  no  right  to  en- 
force it  by  levying  a  distress  upon  the  tenant;  (4)  Rack  rent, 
where  the  amount  of  rent  nearly  or  quite  absorbed  the  entire 
profit  from  the  land.  The  rules  by  which  these  rents  were  gov- 
erned enter  into  the  modern  law  of  landlord  and  tenant  in  refer- 
ence to  many  of  its  details. 

Read:  2  Bl.  Com.,  pp.  40-43; 

3  Kent  Com.,  Lect.  Hi,  pp.  460-463; 

\  Coke,  pp.  47  a,  87  h,  141  b,  142  b,  143  b,  144  b,  150  a.  b,  151  o; 


ELEMENTARY   LAW  §  63 

Clark,  Elementary  Law,  §  190; 

Brantly,  Personal  Property,  §§  87-92; 

Tiedeman,  Real  Property,  §§  641-G46; 

Smith,  Personal  Property,  §§  154-159; 

Kerr,  Real  Property,  §§  60-02,  2237-2253; 

Pingrey,  Real  Property,  §§  110-128; 

Ivirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  33-36; 

Boone,  Real  Property,  §§  12  a,  107; 

Tiffany,  Real  Property,  §§  354-364. 


§  63.     Of  Franchises. 

A  franchise  is  a  branch  of  the  king's  prerogative  in  the  hands  of 
a  subject.  It  is  a  right  which  naturally  inheres  in  the  sovereign, 
but  which  has  been  granted  by  him,  temporarily  or  permanently, 
to  a  private  citizen.  Franchises  are  or  have  been  of  great  variety. 
The  principal  ones  now  in  use  are:  (1)  The  right  bestowed  on 
private  individuals  to  he  a  corporation;  (2)  The  right,  sometimes 
delegated  by  the  State  to  quasi-public  corporations,  to  take  prop- 
erty by  eminent  domain;  (3)  The  right  to  a  monopoly ;  (4)  The 
right  to  establish  bridges  or  ferries  over  public  waters ;  (5)  The 
right  to  use  public  highways  and  other  property  for  special  pur- 
poses ;  (6)  The  right  granted  to  railway  and  other  companies  to 
fix  their  tolls,  or  rates  for  service  rendered  to  the  public.  When  a 
franchise  is  conferred  upon  a  person  and  his  heirs  it  is  an  incor- 
poreal hereditament.  In  this  country  such  rights  are  granted  by 
the  legislative  body  of  the  State,  and  may  be  regulated  by  it  in  the 
interest  of  the  people  at  large. 

Rem.  Every  right  and  power  whose  exercise  is  necessary  to 
the  general  welfare  of  a  people  is  presumed  by  law  to  reside 
somewhere,  and  where  it  is  not  vested  in  a  private  person  the  law 
finds  it  in  the  State.  The  State  is  thus  an  exhaustless  reservoir 
of  authority  out  of  which  may  be  drawn  legal  forces  adequate  to 
cope  with  any  possible  emergency.  This  undefined  and  illimit- 
able authority  dwells  in  the  person  of  an  absolute  monarch  as 
his  prerogative,  the  content  of  which  has  been  sometimes  partially 
but  never  completely  enumerated  by  the  law;  and  portions  of 
this  content,  when  entrusted  to  the  administration  of  an  individual 
citizen,  constitute  a  franchise.  In  a  republic  the  same  preroga- 
ative  resides  in  the  legislative  body,  which  is  the  supreme  power 
in  the  State,  and  enables  it  to  do,  either  by  itself  or  by  its  delegate, 
whatever  the  public  good  may  at  any  time  require.  Hence  the 
number,  character,  and  purposes  of  franchises  vary  with  the  cur- 


§  64  INCORPOREAL  REAL  PROPERTY  69 

rent  needs  of  society  at  large.  Many  once  frequent  and  important 
have  long  since  disappeared.  Others,  until  recently  undreamed 
of,  are  now  in  active  exercise ;  some  of  which,  like  those  granted 
to  quasi-public  corporations,  Ue  at  the  basis  of  the  commercial 
transactions  of  the  entire  world. 

Read:  1  Bl.  Com.,  pp.  237-280; 

2  Bl.  Com.,  pp.  37-40; 

3  Kent  Com.,  Lect.  lii,  pp.  458,  459; 
Clark,  Elementary  Law,  §  190; 
Tiedeman,  Real  Property,  §§  633-636; 
Pingrey,  Real  Property,  §§  105-109; 
Rice,  Real  Property,  §§  170-180; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  32,  33; 
Warvelle,  Real  Property,  p.  64; 
Boone,  Real  Property,  §§  128-134  b. 


§  64.  Of  the  Right  to  the  Laters,!  and  Horizontal  Support  of  Land. 
The  right  of  support  is  the  right  which  every  owner  of  a  piece 
of  land  has  to  have  it  supported  in  its  natural  position  by  the 
surrounding  or  subjacent  land.  This  right  is  incidental  to  the 
ownership  of  land,  and  is  an  application  of  the  rule  that  man  must 
receive  and  use  the  gifts  of  nature  subject  to  the  conditions  which 
nature  has  imposed  upon  them.  The  right  does  not,  however, 
extend  to  buildings  or  other  structures  erected  on  the  land ;  and 
if  their  added  weight  should  cause  the  land  to  fall  into  an  ex- 
cavation made  with  due  care  on  the  adjoining  land,  when  with- 
out these  structures  the  fallen  land  would  have  remained  in  its 
natural  position,  the  owner  of  the  land  and  buildings  will  have 
sustained   no   legal   injury. 

Rem.  The  right  of  support  is  an  instance  of  an  hereditament 
which  is  not  a  profit,  and  is  always  appurtenant,  continuous,  and 
negative.  It  deprives  the  servient  land  of  no  portion  of  its  sub- 
stance; exists  only  in  favor  of  dominant  land;  continues  of 
itself  when  once  established ;  manifests  itself  not  by  any  act  of 
the  owner  of  the  right  but  by  preventing  the  owner  of  the  ser- 
vient land  from  digging  it  away,  and  thus  depriving  the  dominant 
land  of  its  natural  sujjport  without  substituting  an  adequate 
artificial  supj)ort  in  its  place.  Where  this  right  exists  any  exca- 
vation of  the  adjoining  land  is  made  at  the  risk  of  the  excavator; 
and  even  where  the  right  is  lost  througii  the  imposition  of  undue 
weight  upon  the  dominant  land,  it  is  the  duty  of  the  excavator 
to  give  the  owner  of  the  dominant  lantl  due  notice  of  the  intended 
excavation,  and  to  conduct  the  excavation,  if  reasonably  possi- 


70   .  ELEMENTARY  LAW  §  65 

ble,  in  such  a  manner  as  to  prevent  the  anticipated  injury.  A 
right  similar  to  the  right  of  support  is  sometimes  created  by  ex- 
press or  impUed  grant  in  favor  of  one  building  against  another, 
or  of  one  story  in  a  building  against  the  other  stories. 

Read:  Washburn,  Easements,  ch.  iv,  sec.  i,  ii,  iv,  v; 
Walker,  American  Law,  §  134; 
Clark,  Elementary  Law,  §  191; 
Tiedeman,  Real  Property,  §§  618,  619,  621; 
Kerr,  Real  Property,  §§  99-102,  2225-2227; 
Pingrey,  Real  Property,  §§  237-260; 
Jones,  Easements,  §§  585-631; 
Rice,  Real  Property,  §  198; 
Warvelle,  Real  Property,  pp.  59,  60; 
Boone,  Real  Property,  §§  144,  422; 
Tiffany,  Real  Property,  §§301,  309,  310. 


§  65.     Of  Party  Walls. 

A  'partij  wall  is  a  division  wall  built  on  the  line  between  two 
adjoining  tracts  of  land,  —  the  owner  of  each  tract  owning  that 
portion  of  the  wall  which  stands  on  his  side  of  the  line,  and  having 
certain  rights  for  chimney  flues,  and  other  customary  purposes, 
in  the  portion  standing  on  the  adjacent  land.  Neither  of  the 
owners  of  such  a  wall  can  disturb  it  to  the  prejudice  of  the  others, 
but  subject  to  this  restriction  he  may  build  upon  it,  or  put  it  to 
new  uses.  The  expense  of  keeping  it  in  repair  is  chargeable 
upon  all  the  owners,  but  if  it  perishes  by  fire  or  decay  neither  can 
be  compelled  to  rebuild  his  part  of  it  for  the  accommodation  of 
the  others. 

Rem.  Various  other  forms  of  division  wall  exist  besides  the 
true  party  wall,  but  none  of  them  are  subject  to  precisely  the 
same  rights  on  behalf  of  the  adjoining  owners.  They  are  gener- 
ally built  under  some  contract  between  the  parties  by  which  their 
special  privileges  are  particularly  defined.  In  some  of  our 
States  party  walls  are  regulated  by  local  statutes. 

Read:  3  Kent  Com.,  Lect.  Hi,  pp.  437,  438; 
Washburn,  Easements,  ch.  iv,  sec.  iii; 
Clark,  Elementary  Law,  §  191 ; 
Tiedeman,  Real  Property,  §  620; 
Kerr,  Real  Property,  §  2228; 
Jones,  Easements,  §§  632-724; 
Rice,  Real  Property,  §  199; 
Boone,  Real  Property,  §§  145-145  a,  423; 
Tiffany,  Real  Property,  §  311. 


A 


§§  66,  67  INCORPOREAL  REAL  PROPERTY  /\71 

§  66.     Of  Pews  and  Burial  Rights. 

A  pew  is  the  right  to  occupy  a  particular  scat  in  a  church  dur- 
ing rehgious  services.  Formerly  it  was,  and  it  still  may  be,  an  in- 
corporeal hereditament  attached  to  the  ownership  of  private  land, 
and  enjoyed  by  the  tenant  of  the  land  as  appurtenant  to  his  estate. 
The  right  extends  no  farther  than  the  occupancy  of  the  seat,  and 
is  held  subject  to  the  right  of  the  trustees  or  owners  of  the  church 
to  remove  it  for  the  purpose  of  repairing  the  edifice  or  rebuilding 
it  in  another  locality.  A  burial  right  is  the  right  of  one  person  to 
inter  the  bodies  of  deceased  persons  in  the  land  or  buildings  of 
another.  Where  the  place  of  interment  is  private  property  the 
right  of  interment  may  be  an  incorporeal  hereditament,  and  en- 
dure perpetually  or  at  least  so  long  as  the  locality  can  be  lawfully 
used  for  purposes  of  burial.  Where  the  place  of  interment  is  a 
public  cemetery  the  burial  right  is  a  mere  license,  and  can  be 
terminated  whenever  municipal  regulations  may  require. 

Rem.  Except  in  some  ancient  churches,  a  pew  right  in  this 
country  is  now  usually  a  temporary  privilege  granted  to  the  pew- 
holder,  and  he  is  regarded  by  the  law  as  a  mere  tenant  of  the 
pew  and  sometimes  only  as  a  licensee ;  differing  but  little  if  at  all 
from  one  who  occupies  a  reserved  seat  at  a  theater  or  in  a  public 
hall.  Where  pews  or  burial  rights  are  permanent  property  the 
abandonment  or  destruction  of  the  place  in  which  the  right  is  en- 
joyed entitles  the  owner  of  the  right  to  compensation  from  the 
owners  of  the  servient  estate. 

Read:  2  Bl.  Com.,  p.  429; 

3  Kent  Com.,  Lect.  Hi,  p.  402; 

Wasliburn,  Easements,  ch.  iv,  sec.  \'ii,  17; 

Walker,  American  Law,  §  136; 

Smith,  Personal  Property,  §§  19,  20; 

Kerr,  Real  Property,  §§  29-44; 

Pingrey,  Real  Property,  §  17; 

Rice,  Real  Property,  §11; 

Warvelle,  Real  Property,  pp.  47,  48,  65; 

Boone,  Real  Property,  §  8; 

Tiffany,  Real  Property,  §  314; 

Parley,  Mortuary  Law,  pp.  20-210. 

§  67.     Of  the  Right  to  Light  and  Air. 

The  right  to  U(jht  and  air  is  the  right  of  the  owner  of  one  tract 
of  land  to  the  free  and  unobstructed  j)assage  of  light  and  air  to 
his  land  across  the  adjoining  land.    This  is  an  appurtenant,  con- 


72  ELEMENTARY   LAW  §  68 

tinuous,  and  negative  hereditament;  the  enjoyment  of  which 
consists  in  preventing  the  owner  of  the  servient  land  from  erecting 
structures  which  unreasonably  diminish  the  natural  supply  of 
light  and  air  received  by  the  dominant  land.  Every  owner  of  land 
abutting  on  a  public  highway  possesses  this  right.  It  may  also 
be  created  by  an  express  grant  from  the  owner  of  the  private  ser- 
vient land. 

Rem.  Under  the  English  law  the  right  to  light  and  air  might 
be  created  by  implied  grant,  as  where  the  owner  of  a  tract  of  land, 
on  which  a  building  was  erected  with  openings  receiving  air  and 
light  from  the  remaining  land,  sold  the  building  and  retained  the 
land  across  which  the  light  and  air  was  accustomed  to  flow;  in 
which  case  he  could  not  put  the  land  to  uses  which  unreasonably 
obstructed  the  passage  of  the  air  and  light.  The  right  to  light  and 
air  might  also  arise  from  long-continued  enjoyment  across  any 
adjoining  land,  under  the  rule  of  presumed  grant.  These  doc- 
trines were  recognized  and  followed  in  early  American  cases, 
but  have  gradually  been  modified  and  restricted  until  now  it  is 
the  general  rule  that  an  express  grant  is  needed  to  create  this 
hereditament  against  private  land. 

Read:  2  Bl.  Com.,  p.  402,  note; 
3  Kent  Com.,  Lect.  lii,  p.  448; 
Washburn,  Easements,  ch.  iv,  sec.  vi; 
Walker,  American  Law,  §  134; 
Clark,  Elementary  Law,  §  191; 
Tiedeman,  Real  Property,  §§  612,  613; 
Kerr,  Real  Property,  §§  82,  2218,  2219; 
Pingrey,  Real  Property,  §§  155,  156; 
Jones,  Easements,  §§  553-584; 
Rice,  Real  Property,  §  197; 
Warvelle,  Real  Property,  p.  59; 
Boone,  Real  Property,  §  142; 
Tiffany,  Real  Property,  §§  295,  296,  306. 


§  68.     Of  Aquatic  Rights. 

An  aquatic  right  is  the  right  of  one  person  in  or  to  the  private 
waters  of  another,  or  in  or  to  the  land  of  another  with  reference 
to  private  waters  of  his  own.  Aquatic  rights  are  numerous  and 
important.  Among  them  are:  (1)  The  right  to  dam  and  detain 
running  water  as  against  lower  owners;  (2)  The  right  to  dam 
and  flow  back  water  over  the  land  of  upper  owners;  (3)  The 
right  to  divert  or  pollute  a  watercourse ;  (4)  The  right  to  appro- 
priate running  water  to  artificial  uses.     (5)  The  right  to  accumu- 


§  69  INCORPOREAL   REAL  PROPERTY  73 

late  and  discharge  water  with  unnatural  force  or  in  new  channels 
over  lower  land;  (6)  The  right  oi  floatage  in  unnavigable  waters; 
(7)  The  right  of  fishing ;  (S)  The  right  to  receive  percolating 
waters;  (9)  The  right  to  draw  icater  from  a  spring  or  fountain 
on  another's  land ;  (10)  The  right  to  maintain  an  aqueduct  across 
another's  land;  (11)  The  right  of  artificial  drainage  across 
another's  land;  (12)  The  right  to  discharge  water  from  eaves 
or  spouts  upon  another's  land;  (13)  The  right  of  prior  appro- 
priation for  mills,  mines,  irrigation,  and  other  purposes,  which 
is  vested  by  the  local  law  of  some  of  our  States  in  the  first  occu- 
pant. These  rights  may  arise  by  express  or  implied  or  presumed 
grant. 

Rem.  Aquatic  rights  must  not  be  confounded  with  the  rights, 
principal  or  incidental,  which  are  included  in  the  ownership  of 
private  waters.  Frequently  there  is  a  resemblance  between  thera 
not  only  in  the  subject-matter  of  the  right,  but  in  their  origin  and 
the  mode  of  their  enjoyment.  To  distinguish  between  them  it  is 
first  necessary  to  ascertain  what  rights,  princijial  and  incidental, 
are  embraced  in  the  ownersiiip  of  the  waters  in  (juestion  under 
the  local  law.  Any  rights  in  excess  of  these  must  have  been  cre- 
ated by  a  grant,  express,  implied,  or  presumed,  from  the  person 
upon  whose  land  or  waters  they  impose  a  burden  and  thus  consti- 
tute a  new  incorporeal  property  in  the  owner  of  the  right,  dis- 
tinct from  the  corporeal  projicrty  which  he  previously  enjoyed. 

Read:  3  Kent  Com.,  Lect.  Hi,  pp.  427^32,  436,  439-447; 
Washburn,  Easements,  ch.  iii; 
Walker,  American  Law,  §  134; 
Tiedeman,  Real  Property,  §§  614-617; 
Kerr,  Real  Property,  §§  2220-2224; 
Jones,  Easements,  §§  787-SlO; 
Warvelle,  Real  Property,  pp.  57,  58; 
Boone,  Real  Property,  §  141; 
Tiffany,  Real  Property,  §§  307,  308,  367-369.  ^ 

§  69.     Of  Ways. 

A  way  is  the  right  of  one  person  to  pass  and  repass  over  the 
land  of  another  person  by  some  accustomed  or  designated  path. 
Ways  are  of  two  species:  (1)  High  wags,  which  are  open  to  the 
use  of  the  entire  public ;  (2)  Private  ww/.v,  whose  use  is  restricted 
to  a  definite  number  or  class  of  persons.  Private  ways  only  are 
true  incorj)t)real  hereditaments.  Private  ways  are  of  four  kinds: 
(1)   Footways,  for  travelers  on   foot;    (2)   Ilorsc-waijs,  for  trav- 


74  ELEMENTARY  LAW  §  69 

elers  on  horseback;  (3)  Drift-ways,  for  droves  of  cattle;  (4) 
Carriage-ways,  for  vehicles  and  the  animals  propelling  them. 
Each  larger  class  includes  the  rights  embraced  in  the  less.  Pri- 
vate ways  are  affirmative  rights,  and  unless  fenced  in  or  arti- 
ficially constructed  they  are  non-continuous;  but  they  may  be 
either  appurtenant  or  in  gross,  and  may  be  created  by  express, 
implied,  or  presumed  grant.  Where  a  way  is  created  by  express 
grant  its  termini  and  location  are  usually  designated  in  the  grant ; 
if  not,  the  grantor  may  prescribe  them,  and  on  his  failure  to  do 
so  the  grantee  may  select  them,  having  reasonable  regard  to  the 
interests  of  the  grantor.  When  created  by  presumed  grant  they 
are  fixed  by  the  limits  of  the  customary  use  out  of  which  the  pre- 
sumption of  a  grant  arises.  Once  established  in  any  of  these 
modes  they  cannot  be  changed  without  the  consent  of  both  par- 
ties. A  way  created  by  implied  grant  is  called  a  way  of  necessity. 
The  most  frequent  example  of  this  form  of  grant  occurs  when 
the  owner  of  land  bordering  upon  a  highway  divides  it  into  two 
portions,  one  touching  the  highway,  the  other  separated  from  the 
highway,  and  then  sells  either  of  the  two  portions  and  retains  the 
other.  Here  if  the  separated  portion  has  no  reasonable  access 
to  the  highway  except  over  the  other  portion,  the  law  implies  a 
right  in  the  owner  of  the  separated  portion  to  cross  the  other  por- 
tion in  a  proper  manner,  whenever  and  so  long  as  the  necessity 
exists.  No  such  right  exists,  however,  in  favor  of  separated  land 
over  land  which  was  not,  at  the  time  of  the  separation,  a  portion 
of  the  same  original  estate.  The  duty  to  repair  a  way  devolves 
upon  the  owner  of  the  right,  and  for  that  purpose  he  may  enter 
on  the  land  and  perform  whatever  acts  are  necessary.  A  way 
appurtenant  attaches  to  every  portion  of  the  dominant  land  in 
caSe  it  should  be  divided,  but  though  the  burden  on  the  servient 
land  may  thus  be  increased  in  quantity  its  character  must  not  be 
changed. 

Rem.  Highways  differ  from  private  ways  in  many  respects 
beside  that  of  being  open  to  the  public.  The  title  to  the  highway 
resides  in  the  State  or  in  a  public  corporation,  not  in  individuals. 
While  it  may  be  created  by  express,  implied,  or  presumed  grant, 
it  can  also  be  acquired  by  the  act  of  the  State  itself  under  the 
right  of  eminent  domain,  or  be  conferred  upon  the  State  by  the 
dedication  of  the  land  by  its  owner  to  the  public  for  use  as  a 


§  70  ESTATES   IN   REAL  PROPERTY  75 

highway.  The  duty  of  keeping  a  highway  in  repair  rests  upon  the 
public  body  to  whose  care  it  is  entrusted  by  the  law,  and  which 
is  usually  made  liable  to  private  persons  for  injuries  which  thej- 
sustain  from  its  neglect  of  duty.  Highways  are  intended  only  for 
travel  by  passengers  who  are  in  transit  from  one  place  to  another, 
but  custom  warrants  other  uses,  both  on  and  below  the  surface 
of  the  way.  Subject  to  highway  uses  the  land  covered  by  the  way 
belongs  to  the  adjacent  owners,  whose  boundary  is  presumed  to  be 
the  filum  vice,  until  the  contrary  appears. 

Read:  2  Bl.  Com.,  pp.  35,  36; 

3  Kent  Com.,  Lect.  Hi,  pp.  419-427,  432-434; 

Washburn,  Easements,  ch.  ii; 

Walker,  American  Law,  §  133,  134; 

Clark,  Elementary  Law,  §  190; 

Tiedeman,  Real  Property,  §§  607-611; 

Kerr,  Real  Property,  §§  2197-2207,  2214-2217; 

Pingrey,  Real  Property,  §§  153,  154,  166-184,  188,  189,  191-197; 

Jones,  Easements,  §§  204-552,  811-833; 

Rice,  Real  Property,  §  196; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  §§  30,  31,  409- 

411; 
Warvelle,  Real  Property,  pp.  60,  61,  166-170; 
Boone,  Real  Property,  §§  143-143  h,  420; 
Tiffany,  Real  Property,  §§  313,  365,  366,  421-424; 
2  Greenleaf,  Evidence,  §§  657-665. 


Article  III 

OF    ESTATES    IN    REAL    PROPERTY 

§  70.     Of  the  Species  of  Estates  in  Real  Property. 

The  nature  and  scope  of  the  rights  and  obligations  which  con- 
stitute any  estate  depend  in  part  upon  the  character  of  the  prop- 
erty to  which  the  estate  pertains,  and  in  part  upon  the  terms  of 
the  law  or  the  grant  by  which  the  estate  is  created.  As  its  basis 
for  the  classification  of  estates  in  real  property  our  law  adopts  one 
attribute  which  is  common  to  all  such  estates,  —  to  wit,  their 
prospective  duration;  and  on  this  basis  divides  estates  in  real 
property  into  six  sjiccies:  (1)  Estntes  in  fee  fiimple,  or  estates  so 
created  as  to  be  able  to  endure  until  all  the  heirs  of  the  grantee 
are  extinct ;  (2)  Estates  in  fee  tail,  or  estates  so  created  as  to  be 
able  to  endure  until  the  lineal  heirs  of  the  grantee  are  extinct; 
(3)  Estates  for  life,  or  estates  so  created  as  to  be  able  to  endure 
until  the  death  of  the  grantee  or  some  other  specified  person; 


76  ELEMENTARY   LAW  §  70 

(4)  Estates  for  years,  or  estates  so  created  as  to  be  able  to  endure 
for   a  designated  or  immediately  ascertainable  period  of  time; 

(5)  Estates  from  year  to  year,  or  estates  so  created  as  to  be  able  to 
endure  for  at  least  one  year,  and  unless  then  terminated  by  the  act 
of  one  of  the  parties  to  continue  for  a  second  year,  and  so  on  for 
successive  years  until  thus  determined;  (6)  Estates  at  loill,  or 
estates  so  created  as  to  be  able  to  endure  until  terminated  by  the 
act  of  one  of  the  parties.  The  first  three  of  these  estates,  being 
of  indefinite  and  unascertainable  future  duration,  are  regarded  by 
the  law  as  permanent  estates,  and  are  known  as  real  estates  in  real 
'property.  The  remaining  three,  being  of  ascertainable  future 
duration,  are  regarded  by  the  law  as  transient,  and  are  known  as 
personal  estates  in  real  property. 

Rem.  This  system  of  estates  is  the  outgrowth  of  those  land- 
holding  customs  which  prevailed  in  the  agricultural  districts  of 
England  during  the  Saxon  and  Norman  periods  of  its  history. 
Under  the  early  Saxons  these  districts  were  occupied  by  small 
village  communities,  composed  of  freemen  and  serfs,  and  gov- 
erning their  internal  affairs  by  an  assembly  of  the  freemen  pre- 
sided over  by  the  village  chief  or  headman.  The  land  inhabited 
by  the  community  belonged  to  the  village  as  a  whole.  To  each 
household  a  permanent  portion  was  set  out  for  their  dweUing 
place  and  curtilage,  and  the  arable  land  was  distributed  among 
the  households  periodically  or  whenever  the  necessity  for  distri- 
bution might  arise.  The  lands  unfit  for  tillage  were  enjoyed  by 
all  in  common  for  pasturage  and  supplies  of  wood,  stone,  or  other 
materials  for  building  purposes  and  fuel.  The  introduction  of 
the  feudal  system  gradually  changed  the  village  communities  into 
feudal  manors,  in  which  the  title  to  the  land  and  the  political  su- 
premacy were  vested  in  a  feudal  lord,  the  villagers  became  his 
free  or  serf  tenants,  the  best  portion  of  the  land  was  held  as  his 
domain,  and  the  common  portion  was  known  as  the  lord's  waste 
though  still  enjoyed  by  his  tenants  according  to  the  ancient 
usages.  The  relation  between  the  tenants  and  their  feudal  lord 
was  of  a  double  nature.  They  occupied  their  lands  upon  condi- 
tion of  certain  services  or  rents  to  be  rendered  to  the  lord,  and 
they  were  also  subject  to  him  by  a  feudal  tie  which  neither  he  nor 
they  had  power  to  break  against  the  wishes  of  the  other.  The 
free-tenant  was  the  "lord's  man,"  bound  to  him  for  life  in  feudal 
service,  and  holding  for  life  the  land  to  which  the  service  was  at- 
tached. The  serf-tenant  was  also  bound  for  life  under  the  lord's 
personal  dominion,  but  occupied  such  land  as  the  lord  might 
from  time  to  time  apportion  to  him.     During  this  feudal  period 


§  71  ESTATES   IN   REAL  PROPERTY  77 

the  primary  conception  of  a  free  estate  in  lands  was  that  of  an 
estate  for  Hfe ;  of  a  serf  estate  was  that  of  an  estate  at  the  will  of 
tiie  lord.  Later  this  conception  of  a  life  estate  developed  into 
that  of  a  succession  of  life  estates  vesting  one  after  another  in  the 
tenant  and  his  heirs ;  and  later  still  into  that  of  a  continuous 
estate  residing  in  the  tenant  and  his  heirs  until  the  ancestral 
stock  was  exhausted.  "^I'he  serf's  estate  at  will  also  developed  into 
the  estate  from  year  to  year  and  the  estate  for  years.  The  estate 
for  life  and  its  derivatives,  —  the  estate  in  fee  tail  and  the  estate 
in  fee  sinijile,  —  being  estates  granted  only  to  freemen,  were 
calletl  freeholds,  a  name  they  still  retain.  The  estate  at  will  and 
its  derivatives  —  the  estate  from  year  to  year  and  the  estate  for 
years  —  were  called  estaies  less  than  freehold.  For  the  reason 
given  in  the  text  freehold  estates  are  real  estates;  while  estates 
less  than  freehold  are  [)ersonal  estates  or,  as  they  are  sometimes 
designated,  "chattels  real." 

Read:  2  Bl.  Com.,  pp.  44-r)S,  90-98; 
3  Kent  Corn.,  Lect.  liii,  pp.  487-509; 
Green,  Making  of  F^ngland,  pp.  154-188; 
Walker,  American  Law,  §§  130,  131; 
Clark,  Elementary  Law,  §  198; 
Tiedeman,  Real  Property,  §§  19-26; 
Kerr,  Real  Property,  §§  148-190,  229-244; 
Pingrey,  Real  Property,  §§  20-28,  277; 
Rice,  Real  Pro[)erty,  §  33 ; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  38-73; 
Warvelle,  lieal  Property,  pp.  68-70; 
Boone,  Real  Property,  §§  14,  19; 
Tiffany,  Real  Property,  §§  7-14,  18. 


§  71.     Of  Seisin. 

According  to  the  feuflal  cus\)ms  a  freehold  estate  in  corporeal 
real  proj)erty  was  created  by  a  ceremony  callerl  " liveri/  of  seisitt." 
The  lord  and  his  future  tenant  went  upon  the  land  and  there,  in 
the  presence  of  witnesses,  the  lord  delivered  to  the  tenant  a  clod 
or  twig  as  symbolic  of  the  land,  while  the  tenant  swore  fealty  to 
the  lord  and  j)rcjniised  to  perform  the  services  attached  to  his 
estate.  By  this  ceremony  the  legal  possession  of  the  land  became 
vested  in  the  tenant,  and  was  the  external  evidence  not  only  of  the 
tenant's  ownership  of  his  estate,  but  of  the  feudal  tie  which 
bound  him  to  his  lord.  To  this  possession  the  law  gave  the  name 
of  "seinn."  Seisin  is  not  mere  occupation  of  the  land,  for  this 
is  common  both  to  estates  of  freehold  and  to  estates  less  than 
frecliold.     Xor  is  occupation  necessary  to  seisin,  for  after  seisin 


78  ELEMENTARY  LAW  §  71 

has  once  been  acquired  by  livery  and  the  entry  of  the  tenant  noth- 
ing can  destroy  it  while  the  estate  endures,  except  the  entry  of  an 
intruder  who  claims  a  superior  freehold  title  and  wholly  excludes 
the  tenant  from  the  land.  Seisin  is  thus  the  indispensable  and 
inseparable  attribute  of  a  freehold  estate  in  corporeal  real  prop- 
erty; and  as  such  an  estate  cannot  be  created  without  it,  so, 
should  the  seisin  be  lost  through  the  expulsion  of  the  tenant  by 
an  intruder,  the  courts  of  common  law  no  longer  recognize  the 
estate  of  the  tenant  but  impute  the  ownership  of  the  freehold  to 
the  intruder  who  now  has  the  seisin,  although  it  has  been  wrong- 
fully acquired. 

Rem.  Seisin  is  not  predicable  of  estates  less  than  freehold  in 
corporeal  real  property  nor  of  any  estates  in  incorporeal  real 
property.  The  possessory  rights  of  tenants  less  than  freehold 
rest  upon  the  seisin  of  the  freehold  estate  from  which  they  are 
derived,  and  if  that  seisin  fails  those  rights  are  lost.  Estates  in 
incorporeal  real  property  are  created  not  by  livery  but  by  grant, 
and  their  enjoyment  is  protected  by  the  seisin  of  the  dominant 
and  servient  estates.  Where  several  concurrent  or  successive 
freehold  estates  are  created  in  favor  of  different  tenants  at  the 
same  moment,  livery  of  seisin  is  made  to  the  tenant  having  the 
immediate  enjoyment  on  behalf  of  all,  and  each  thenceforth  has 
the  seisin  of  his  own  estate  though  his  actual  enjoyment  of  the 
property  will  be  deferred  until  his  turn  arrives.  Where  several 
estates  thus  coexist  the  seisin  of  the  immediate  estate  alone  is 
now  assertible ;  that  of  a  deferred  estate  remains  unasserlibh 
until  the  time  for  its  enjoyment  comes,  but  meanwhile  it  is  repre- 
sented and  protected  by  the  seisin  of  the  immediate  estate.  An 
assertible  seisin  is  called  seisin  in  fact  when  the  tenant  is  now  or 
has  been  in  actual  possession  of  the  land  and  has  not  been  ex- 
pelled by  an  intruder.  A  tenant  whose  seisin  is  at  once  assertible 
but  who  has  not  yet  entered  on  the  land,  like  the  heir  of  a  just 
deceased  tenant,  is  said  to  have  seisin  in  law. 

Read:  2  Bl.  Com.,  pp.  310-316; 

4  Kent  Com.,  Lect.  Ixvii,  pp.  480-490; 

Washburn,  Real  Property,  §§  107-116; 

Walker,  American  Law,  §  137; 

Tiedeman,  Real  Property,  §  24; 

Rice,  Real  Property,  §§  36,  37; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  74-77; 

Boone,  Real  Property,  §  20; 

Tiffany,  Real  Property,  §  15. 


§§  72,  73  ESTATES   IN   REAL  PROPERTY  79 

§  72.     Of  the  Relation  of  Seisin  to  Freeholds  in  Future. 

As  livery  of  seisin  is  an  instantaneous  act,  taking  immediate 
effect,  it  is  manifestly  impossible  to  create  by  livery  a  freehold  es- 
tate which  shall  come  into  existence  m  futuro ;  and  it  is  equally 
impossible  to  create  a  present  freehold  which  shall  come  into  en- 
joyment in  futuro  unless  at  the  same  time  an  intermediate  estate 
is  created  to  whose  owner  livery  of  seisin  might  be  made,  both  on 
his  own  behalf  and  on  behalf  of  the  future  freehold  tenant.  And 
even  when  this  is  done,  if  the  intermediate  estate  should  fail  be- 
fore the  seisin  of  the  future  freehold  tenant  becomes  assertible 
his  estate  would  be  also  lost,  because  as  an  assertible  seisin  must 
exist  in  some  one,  and  could  not  yet  vest  in  him,  the  law  will  find 
it  in  the  grantor  from  whom  the  estates  were  derived,  and  out  of 
whom  it  cannot  again  proceed  without  a  new  livery  in  connection 
with  a  new  estate. 

Rem.  The  law  presumes  that  every  article  of  property  has  an 
owner,  and  that  in  all  corporeal  real  property  there  is  a  fee  simple 
estate  in  whose  tenant  the  ultimate  seisin  of  the  land  resides.  If 
no  subordinate  freehold  estate  exists  in  the  land,  or  none  exists 
whose  seisin  is  now  assertible,  the  seisin  of  the  original  fee  simple 
is  at  once  in  active  operation,  and  clothes  the  owner  of  that  fee 
simple  with  entire  dominion  over  the  land,  so  far  as  the  courts  of 
common  law  are  concerned.  Hence  there  can  be  no  complete 
failure  of  visible  ])rivate  ownership  so  long  as  the  heirs  of  the 
tenant  in  fee  simple  endure  and  are  discoverable;  and  should  no 
heirs  be  found  the  property,  estate,  and  seisin  would  revert  to  the 
State  as  the  original  source  from  which  all  private  estates  have 
been  derived. 

Read:  2  Bl.  Com.,  pp.  144,  165-168,  314-316; 
4  Kent  Com.,  Lect.  lix,  p.  234. 

§  73.     Of  the  Relation  of  Seisin  to  Equitable  Estates  in  Lands. 

The  courts  of  common  law  originated  and  developed  concur- 
rently with  this  system  of  estates,  and  consequently  recognized 
these  and  no  others  as  legal  estates,  and  ignored  altogether  a  mere 
beneficial  interest  in  lands  even  though  it  was  of  indefinite  dura- 
tion. When  courts  of  e(|uity  arose  they  gave  these  beneficial  in- 
terests adec|uate  protection,  and  hence  they  became  known  as 
equitaUe  estates.  The  radical  distinction  between  an  estate  of 
freehold  and  an  e(|uitable  estate  of  indefinite  duration  is  that  the 


80  ELEMENTARY   LAW  §  73 

former  must  be  created  by  livery  of  seisin,  and  the  seisin  must 
continue  in  its  owner ;  while  the  latter  cannot  be  created  by  livery 
of  seisin,  and  seisin  never  resides  in  its  owner,  for  should  the  seisin 
and  the  equitable  estate  chance  to  meet  in  the  same  person  the 
equitable  estate  would  be  at  once  merged  in  the  legal  estate  and 
disappear.  At  the  same  time,  in  order  to  secure  the  enjoyment  of 
the  equitable  estate  against  infringement,  it  is  necessary  that  the 
legal  estate  with  its  assertible  seisin  should  reside  in  some  owner, 
who  can  invoke  in  its  defence  the  aid  of  the  courts  of  common 
law,  and  exercise  other  legal  rights  in  the  control  and  manage- 
ment of  the  land.  This  is  the  reason  for  the  rule  that  "there  can 
be  no  use  or  equitable  estate  without  a  seisin  or  legal  estate  to 
serve  it." 

Rem.  Equitable  estates  in  lands  were  formerly  called  uses, 
and  were  introduced  into  our  landed  system  in  order  to  avoid 
some  of  the  restrictions  upon  the  enjoyment  and  transfer  of  lands 
which  grew  out  of  the  doctrine  of  seisin.  A  use  was  not  an  estate 
in  the  land  itself,  but  was  a  confidence  reposed  in  the  holder  of  the 
legal  estate  that  he  would  suffer  the  owner  of  the  use  to  take  the 
profits.  As  the  creation  of  a  use  did  not  affect  the  legal  estate  in 
the  land,  but  simply  imposed  an  equitable  obligation  on  its  holder, 
no  lively  of  seisin,  not  even  a  written  grant,  was  required,  but  it 
could  be  summoned  into  existence  by  a  spoken  word  or  by  a  line 
of  conduct.  It  might  be  conferred  to  take  effect  at  once  or  at  any 
future  time,  and  needed  no  intermediate  use  to  support  it.  It 
could  be  bestowed  by  the  owner  of  the  legal  estate  or  by  his  dele- 
gate, and  once  created  it  could  not  be  defeated  until  the  confi- 
dence was  completely  fulfilled  unless  by  some  fortuity  the  legal 
estate  on  which  it  was  founded  was  destroyed.  These  character- 
istics rendered  uses  so  available  for  many  purposes,  which  could 
not  be  accomplished  under  the  doctrine  of  seisin,  that  they  mul- 
tiplied with  great  rapidity  until  by  the  reign  of  Henry  VIII,  as 
Blackstone  says,  "the  greatest  part  of  the  land  of  England  was 
conveyed  to  uses;  the  property  or  possession  of  the  soil  being 
vested  in  one  man  and  the  use  or  profits  thereof  in  another; 
whose  directions  with  regard  to  the  disposition  thereof  the  former 
was  in  conscience  obliged  to  follow  and  might  be  compelled  by  a 
court  of  equity  to  observe." 

Read:  2  Bl.  Com.,  pp.  137,  327-332; 
4  Kent  Com.,  Lect.  Ixi,  pp.  289-293; 
Tiedeman,  Real  Property,  §§  441-470; 
Kerr,  Real  Property,  §§  1611-1658; 
Boone,  Real  Property,  §§  149,  150. 


§  74  ESTATES   IN   REAL   PROPERTY  81 

§  74.     Of  Seisin  after  the  Statute  of  Uses. 

The  inconveniences  occasioned  by  the  great  increase  in  equi- 
table estates,  especially  in  reference  to  the  certainty  of  title  and 
the  enforcement  of  feudal  obligations,  led  to  the  enactment  of 
an  Act  of  Parliament  in  the  year  27  Henry  VIII  (a.  d.  1535) 
which  is  known  as  the  Statute  of  Uses,  and  which  provided  that 
the  seisin  shcruld  follow  the  use;  or,  in  other  words,  that  the 
creation  of  an  equitable  estate  should  ipso  facto  vest  the  seisin  in 
the  person  to  whom  the  equitable  estate  was  granted.  Thence- 
forth, with  the  exception  of  a  few  species  of  equitable  estates  to 
which  the  language  of  the  Statute  was  not  apjilicable,  an  open, 
formal  livery  of  seisin  was  no  longer  necessary,  and  any  trans- 
action, however  trivial  or  secret,  if  sufficient  to  create  a  use,  also 
transferred  the  legal  estate.  This  in  turn  opened  the  door  to 
great  abuses  by  the  facility  it  afforded  for  the  perpetration  of 
frauds  upon  the  owners  of  real  pro|)erty,  and  by  rendering  it 
uncertain  to  whom  the  legal  estate  might  at  any  moment  belong; 
difficulties  which  were  met  by  another  Act  of  the  same  Parlia- 
ment recjuiring  the  creation  of  etjuitable  estates  by  bargain  and 
sale  to  be  by  a  deed  or  instrument  in  writing,  which  should  be 
publicly  enrolled.  The  delivery  of  this  deed  marked  the  creation 
of  the  e(|uitable  estate,  which  the  Statute  immediately  executed 
by  imputing  the  seisin  to  the  eijuitable  grantee;  whereby  the  de- 
livery of  the  deed  became  of  the  same  legal  effect  as  the  ancient 
livery  of  seisin. 

Rem.  The  Statute  of  Uses  was  the  last  of  a  long  series  of 
Acts  of  Parliament,  now  called  Acts  of  Mortmain.  From  the 
establishment  of  Christianity,  as  the  state-religion  of  England, 
ecclesiastical  institutions  of  great  power  and  wealth  were  multi- 
plied, and  these,  from  the  nature  of  the  case,  were  exempt  from 
many  feudal  burdens.  Lands  donated  to  them  thus  ceased  to 
be  tributary  to  their  former  feudal  lords,  and  lands  conveyed  to 
them,  and  by  th(>m  granted  to  their  former  owners  to  be  held 
by  an  ecclesiastical  tenure,  also  escaped  from  feudal  obligations. 
Under  the  influence  of  these  two  motives  —  charity  and  self- 
protection  against  feudal  impositions  —  such  conveyances  became 
very  numerous,  and  as  these  institutions  were  mostly  cor- 
porations having  perjietual  existence,  lands  thus  conveyed  never 
came  back  into  tlie  general  ownership  of  individuals,  but  were 
forever  lost  to  the  service  of  the  State  and  to  their  feudal  lords. 
To  prevent  these  conveyances  the  Parliament  first  endeavored, 

6 


82  ELEMENTARY   LAW  §  75 

by  the  earlier  Acts  of  Mortmain,  to  incapacitate  corporations 
from  receiving  such  conveyances,  by  depriving  them  of  the  power 
to  take  and  hold  the  seisin,  or  legal  estate  in  lands.  The  corpora- 
tions met  these  enactments  by  resorting  to  the  system  of  uses, 
taking  a  grant  of  the  equitable  estate  only  while  the  legal  estate 
was  conveyed  to  a  third  party  or  held  by  the  former  owner  for 
their  use.  At  this  device  the  Statute  of  Uses  was  aimed,  and 
since  under  former  Acts  of  Mortmain  these  corporations  could  not 
take  the  seisin  and  under  the  Statute  of  Uses  they  could  not  re- 
ceive an  equitable  estate  without  receiving  the  seisin  also,  it 
seemed  for  the  moment  as  if  the  drift  of  landed  property  into 
corporate  ownership  was  stayed.  About  twenty-one  years,  how- 
ever, after  the  passage  of  this  Statute  the  courts  of  common  law, 
in  construing  a  conveyance  of  land  to  A  for  the  use  of  B  for  the 
use  of  C,  decided  that  a  use  could  not  be  limited  upon  a  use,  and 
therefore  that  the  use  to  C  was  void,  while  the  conveyance  to 
A  for  the  use  of  B  vested,  under  the  Statute,  the  legal  estate  in 
B.  But  the  courts  of  equity  refused  to  recognize  this  doctrine 
and  held  that  C  had  rights  which  could  not  be  ignored ;  and  that 
since  at  common  law  the  legal  estate  must  vest  in  B,  an  equi- 
table estate  resided  in  C  which  the  courts  of  equity  would  enforce 
against  B  according  to  the  nature  of  the  beneficial  interest 
which  the  grantor  had  intended  to  confer  on  C.  This  assertion  of 
the  courts  of  equity  restored  at  once  the  ancient  system  of  uses, 
rendered  it  again  possible  to  sever  the  legal  from  the  equitable 
estate,  and  required  only  that  in  the  form  of  the  grant  one  equi- 
table estate  should  be  created  which  might  be  executed  by  the 
Statute  of  Uses,  and  that  the  grantee  of  such  estate  should  be 
directed  to  hold  it  for  the  benefit  of  a  second  equitable  grantee. 
This  rule  of  the  courts  of  equity  is  the  foundation  of  our  modern 
system  of  trusts. 

Read:  2  Bl.  Com.,  pp.  268-272,  332-337; 
4  Kent  Com.,  Lect.  Ixi,  p.  294; 
BoUes,  Important  English  Statutes,  p.  8,  Acts  of  Mortmain,  p.  32, 

Statute  of  Uses,  p.  38,  Act  of  Enrollment; 
Barbour,  Rights  of  Persons  and  Property,  pp.  361-368; 
Tiedeman,  Real  Property,  §§  441-470; 
Rice,  Real  Property,  §§  205-210; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  140-178; 
Boone,  Real  Property,  §§  151-156; 
Tiffany,  Real  Property,  §§  82-90. 

§  75.     Of  Seisin  under  the  Modern  Law  of  Real  Property. 

Although  the  Statute  of  Uses  has  rendered  livery  of  seisin  un- 
necessary, and  substituted  for  it  the  delivery  of  a  deed  of  the 
equitable  estate,  yet  seisin  itself  is  still  one  of  the  distinctive  char- 


§  76  ESTATES   IN  REAL  I^ROPERTY  83 

acteristics  of  a  legal  freehold  estate  in  real  property.  A  free- 
holder who  has  lost  liis  seisin  cannot  vindicate  his  title  in  the 
courts  of  common  law ;  nor,  except  by  some  special  provision  of 
the  local  law,  can  he  create  or  convey  a  freehold;  nor  can  his 
heir  inherit ;  nor  can  his  widow  have  her  dower,  unless  at  some 
time  during  the  coverture  her  husband  had  temporarily  regained 
his  seisin.  On  the  other  hand  a  disseisor,  though  guilty  of  a 
wilful  wrong,  has  all  these  rights  by  virtue  of  his  apparent  seisin 
until  it  is  extinguished  by  the  re-entry  of  the  true  freehold  owner. 
The  ancient  doctrine  that  the  law  of  seisin  is  in  effect  the  law  of 
real  property  thus  remains  unshaken,  nor  while  our  system  of  es- 
tates endures  does  it  seem  possible  that  its  importance  can  be  sub- 
stantially diminished. 

Revi.  One  of  the  most  prominent  differences  produced  in 
our  modern  law  of  real  property  by  the  influence  of  the  Statute 
of  Uses  upon  the  doctrine  of  seisin  is  exhibited  in  the  facility 
with  which  future  legal  estates  of  freehold  can  now  be  created. 
As  an  e(|uitable  estate  can  be  created  to  take  effect  in  the  future, 
and  as  whensoever  it  docs  take  effect  the  Statute  of  Uses  instantly 
vests  the  seisin  in  the  equitable  grantee  and  thereby  changes  the 
equitable  into  a  legal  estate,  no  obstacle  growing  out  of  the  doc- 
trine of  seisin  now  exists  against  the  creation  of  a  future  legal 
freehold  estate.  Moveover,  as  no  intermediate  estate  is  necessary 
to  support  a  future  ecjuitable  estate,  so  will  the  legal  estate  into 
which  it  is  to  be  transmuted  by  the  Statute  of  Uses  arise  without 
reference  to  any  preceding  estate,  provided  only  that  the  seisin 
which  the  grantor  had  created  to  serve  the  future  ecpiitable 
estate  has  been  meanwhile  preserved.  When  future  estates  are 
created  in  this  manner  by  a  will  they  are  known  as  '^exemtory 
detmes";  when  created  by  deed  they  are  called  "executory 
interests.^' 

Read:  2  Bl.  Com.,  pp.  19r>-199; 

4  Kent  Com.,  Lect.  Ixi,  pp.  295-299; 
Walker,  American  Law,  §  201 ; 
I  \.     /Tiedeman,  Real  Property,  §  795; 
f)    .l^    J^l^^"  Jones,  Real  Property,  §§  119-140; 
LJvA       U  V  Rice,  Real  Property,  §  379; 

/      ^  Boone,  Real  Property,  §§21,  157; 

J  Tiffany,  Real  Property,  §  498. 

§  76.     Of  Entry. 

The  act  by  which  the  owner  of  a  legal  estate  of  freehold  in 
lands  asserts  his  seisin  is  known  as  "r»/r//."     Kntrv  consists  in 


84  ELEMENTARY  LAW  §  77 

going  upon  the  land,  or  as  near  it  as  circumstances  will  permit, 
and  making  public  claim  thereto  according  to  the  nature  of  the 
claimant's  estate  therein.  When  the  estate  is  created  by  livery  of 
seisin  or  its  equivalent  the  reception  of  the  seisin  by  the  grantee 
constitutes  his  entry.  When  the  estate  is  otherwise  created,  or 
when  it  descends  from  a  deceased  ancestor,  or  when  prior  estates 
of  freehold  have  determined,  or  when  once  having  received  the 
seisin  the  owner  has  since  been  disseised,  a  formal  act  of  entry 
becomes  necessary. 

Rem.  Entry  results  in  the  legal  possession  of  the  land  by  the 
owner,  though  his  actual  physical  presence  upon  it  may  endure 
but  for  a  moment,  and  thougli  he  may  not  even  touch  the  land, 
if  this  be  due  to  the  forcible  resistance  of  an  unlawful  intruder. 
The  legal  possession  gained  by  entry  extends  to  the  entire  area 
of  the  land  to  which  the  claimed  estate  pertains,  although  the 
owner  in  entering  may  merely  place  his  foot  upon  a  minute  por- 
tion of  the  land ;  or,  if  this  be  prevented  by  an  intruder,  makes  his 
claim  to  the  entire  area  from  as  near  a  point  as  possible.  A 
wrongful  entry  by  a  disseisor,  on  the  contrary,  is  not  effective  to 
vest  the  seisin  in  him  unless  he  actually  goes  upon  the  land,  and  so 
occupies  the  whole  of  its  area  as  to  exclude  the  owner  from  every 
part  thereof,  or  enters  under  an  apparently  valid  conveyance  in 
which  the  boundaries  of  the  land  claimed  by  him  are  cleavly 
defined. 

Read:  3  Bl.  Com.,  pp.  174-179; 
Boone.  Real  Property,  §  411. 

§  77.     Of  Estates  in  Fee  Simple. 

An  estate  in  fee  simple  is  an  estate  so  created  as  to  be  able  to 
endure  until  the  lineal  and  collateral  heirs  of  the  grantee  are  all 
extinct.  This  is  the  largest  possible  estate.  It  includes  all  others 
and  is  the  sum  of  all.  The  owner  may  freely  alienate  it,  or  may 
create  lesser  estates  out  of  it ;  and  when  these  lesser  estates  have 
all  expired  the  fee  simple  will  still  remain  in  him  or  his  heirs. 
Of  every  article  of  corporeal  real  property  a  fee-simple  estate  may 
be  predicated  in  some  person ;  and  if  no  other  owner  for  it  can 
be  found  the  law  presumes  the  State  to  be  its  owner  till  the  con- 
trary appears. 

Rem.  An  estate  in  fee  was  formerly  regarded  as  a  series  of  life 
estates  vesting  in  succession  in  the  grantee  and  his  heirs,  and 
holders  of  such  estates  could  neither  alien  nor  incumber  the  land, 


§  78  ESTATES   IN   REAL   PROPERTY  85 

nor  defeat  the  expectation  of  the  heirs,  nor  prevent  the  ultimate 
reversion  of  the  land  to  their  grantor.  Later,  the  privilege  of 
aliening  the  entire  future  series  of  estates  by  the  present  holder 
was  recognized  in  case  he  had  purchased  and  j)aid  for  an  estate 
in  fee ;  and  finally,  every  grantee  in  fee  simple  was  considered  as 
the  owner  of  the  whole  series  of  estates  and  able  to  dispose  of 
the  inheritance  at  his  pleasure,  —  thus  depriving  his  heirs  of  all 
chance  of  its  enjoyment  and  the  grantor  of  any  possible  rever- 
sion. This  change  in  the  attitude  of  the  law  toward  the  estate 
requires  the  fee  simple  now  to  be  defined  as  an  estate  so  created 
that  the  owner  may  dispose  of  the  entire  interest  in  the  property 
as  he  will,  and  that,  if  not  disposed  of,  it  will  survive  him  and 
descend  first  to  his  lineal  and  then  to  his  collateral  heirs  forever. 

Read:  2  Bl.  Com.,  pp.  104-107; 
4  Kent  Com.,  Lect.  liv,  pp.  1-5; 

Barbour,  Rights  of  Persons  and  Property,  pp.  387-391; 
Clark,  Elementary  Law,  §  198  a; 
Tiedeman,  Real  Property,  §  36; 
Kerr,  Real  Property,  §§  245-262,  263-320; 
Pingrey,  Real  Property,  §  278; 
Rice,  Real  Property,  §§  34,  35,  40,  43,  44: 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  204-219; 
Warvclle,  Real  Property,  pp.  70,  71; 
Boone,  Real  Property,  §§  15,  17,  18; 
Tiffany,  Real  Property,  §§  19,  21; 
Belles,  Important  English  Statutes,  p.  16,  Act  Quia  Emptoret. 


§  78.     Of  the  Creation  of  Estates  in  Fee  Simple. 

An  estate  in  fee  simple  may  be  created  by  grant,  or  by  devise,  or 
by  operation  of  law.  To  create  an  estate  in  fee  simple  by  a  grant 
the  rule  of  the  common  law  requires  that  the  estate  shall  be 
granted,  in  so  many  words,  to  a  person  "and  his  heirs,"  no  other 
words  being  the  legal  ecjuivalent  of  these;  but  some  of  our 
American  States  have  departed  from  this  rule.  In  a  devise  these 
words  are  not  necessary  when  it  is  ajjparent  from  the  whole  will, 
taken  together,  that  the  testator  intended  to  confer  a  fee  simple, 
A  fee  simple  arises  by  implication  of  law  (1)  Where  a  use  is 
granted  in  fee  simple  and  the  legal  estate  which  is  to  serve  it  is 
not  properly  described  as  also  a  fee,  —  the  law  in  such  a  case  not 
suffering  the  equitable  estate  to  fail  for  want  of  a  sufficient  legal 
estate  to  support  it;  (2)  When  a  disseisor  maintains  his  advM"se 
possession  until  all  rigiitful  owners  are  j)re(ludcd  by  the  Statute 
of  Limitations  from  enforcing  their  own  titles,  —  in  wliich  case, 


86  ELEMENTARY   LAW  §  79 

since  no  other  fee-simple  estate  can  be  asserted,  the  law  presumes 
that  the  disseisor  has  the  fee. 

Rem.  Under  the  common-law  rule  the  grant  of  an  intended  fee 
simple  which  omits  the  words  "and  his  heirs"  creates  only  a 
life  estate  in  the  grantee.  The  departures  from  this  rule  in  our 
American  States  have  not  been  uniform.  In  some  States  equiva- 
lent phrases  are  admitted  to  have  the  same  effect  as  the  technical 
words  above  required.  In  others,  every  grant  is  presumed  to  con- 
fer a  fee  simple  unless  the  words  of  the  instrument  designate  a 
lesser  estate.  Certain  States  recognize  an  estate  for  years  which 
still  has  a  prescribed  period  to  run  as  clothed  with  the  attributes 
of  a  fee  simple.  These  modifications  of  the  general  rule,  made 
perhaps  to  avoid  individual  cases  of  hardship,  have  introduced 
great  confusion  into  a  subject  which,  above  all  others,  should 
be  uniform  and  clear.  The  character  of  a  fee-simple  estate  is  not 
affected  by  the  annexation  to  it  of  a  qualification  or  condition 
which  may  lead  to  its  termination  before  its  natural  duration 
would  expire. 

Read:  2  Bl.  Com.,  pp.  107-110; 
4  Kent  Com.,  Lect.  liv,  pp.  5-10; 
Washburn,  Real  Property,  §§  147-157,  636; 
Barbour,  Rights  of  Persons  and  Property,  pp.  392-394; 
Walker,  American  Law,  §  138; 
Tiedeman,  Real  Property,  §§  37-39; 
Kerr,  Real  Property,  §§  250,  321-338,  419-429,  439-451; 
Pingrey,  Real  Property,  §§  279-284; 
Rice,  Real  Property,  §§  38,  39; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  219-230; 
Warvelle,  Real  Property,  pp.  262-267; 
Boone,  Real  Property,  §§  16,  410; 
Tiffany,  Real  Property,  §  20. 


§  79.     Of  Estates  in  Fee  TaiL 

An  estate  in  fee  tail  is  an  estate  so  created  as  to  be  able  to  en- 
dure until  the  lineal  heirs  of  the  grantee  are  extinct.  The  tech- 
nical words  used  in  creating  this  estate  are  "heirs  of  his  body." 
These  words  convey  an  estate  in  tail  general.  An  estate  in  special 
tail  is  created  by  the  words  "  lieirs  of  his  body  begotten  upon  his 
wife  A."  Limitations  may  be  further  made,  confining  the  grant 
to  the  heirs  male  or  to  the  female  heirs,  by  inserting  the  adjective 
denoting  the  gender.  In  deeds  no  other  words  can  take  the  place 
of  these;  but  in  wills  such  expressions  as  "seed,"  "issue,"  "chil- 
dren," and  the  like  are  recognized  as  equivalents.    These  estates 


§  79  ESTATES  IN  REAL  PROPERTY  87 

have  no  particular  advantages  under  our  modern  land  system, 
and  are  not  generally  recognized  in  this  country.  In  some  of 
our  States  they  have  been  abolished  by  statute,  and  a  grant  or  de- 
vise of  a  fee  tail  in  words  creates  a  fee  simple  either  in  the  first 
grantee  or  his  immediate  descendants.  A  use  limited  in  fee  tail, 
however,  is  protected  and  enforced  according  to  the  express 
direction  of  the  grantor. 

Rem.  The  original  conception  of  an  estate  tail  like  that  of  a 
fee  simple  was  of  a  series  of  life  estates  vesting  successively  in 
the  grantee  and  the  designated  heirs.  This  conception  developed 
later  into  that  of  a  life  estate  residing  in  the  first  grantee  ui\til  he 
had  an  heir  born  capable  of  succeeding  him  under  the  grant,  and 
then  enlarging  into  an  estate  of  inheritance  in  him  which  he  could 
convey  to  third  parties,  thus  defeating  the  expectations  both  of 
his  heirs  and  his  reversioners.  This  estate  was  called  a  condi- 
tional fee;  that  is,  a  life  estate  conditioned  to  enlarge  into  a  fee 
on  the  birth  of  an  heir.  At  this  stage  of  its  development  it  was  ar- 
rested by  the  Statute  of  Westminster  the  Second  in  A.  D.  1285, 
which  provided  that  estates  granted  to  a  person  and  his  lineal 
heirs  should  at  his  death  descend  to  them  according  to  the  terms 
of  the  grant,  and  then,  if  there  were  no  such  heirs  surviving, 
should  revert  to  the  grantor.  The  estate  was  then  called  fcudum 
talliatum,  or  fee  tail,  to  characterize  it  as  an  estate  in  fee  cut  off 
from  the  larger  fee,  or  fee  simple.  That  portion  of  the  Statute  of 
A.  D.  1285  which  relates  to  these  estates  is  known  as  the  "Statute 
De  Bonis  Conditionalibus,"  or  "0/  Conditional  Fees." 

Read:  2  Bl.  Com.,  pp.  110-119; 

4  Kent  Com.,  Lect.  liv,  pp.  11-20; 

Washburn,  Real  Property,  §§  173-183,  191-207,  214,  215,  219;  and 

note ; 
Barbour,  Rights  of  Persons  and  Property,  p.  391 ; 
Walker,  American  Law,  §  153; 
Tiedeman,  Real  Property,  §§  44-50,  52; 
Kerr,  Real  Property,  §§  430-438,  452-552; 
Pingrey,  Real  Property,  §§  285-288,  290; 
Jones,  Real  Property,  §§  154,  155,  611-618; 
Rice,  Real  Property,  §§  46-59; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  231-252; 
Warvelle,  Real  Property,  pp.  71-73; 
Boone,  Real  Property,  §§  23-32; 
Tiffany,  Real  Property,  §§  22-29; 
Bolles,  Important  English  Statutes,  p.  12,  Act  De  Dorm, 


88  ELEMENTARY   LAW  §  80 

§  80.     Of  Estates  for  Life. 

An  estate  for  lije  is  an  estate  so  created  as  to  be  able  to  endure 
for  the  life  of  its  owner  or  that  of  some  other  specified  person.  An 
estate  -limited  by  the  life  of  its  owner  is  called  simply  a  'Hije 
estate")  one  limited  for  the  life  of  another  person  is  called  an 
"estate  per  aider  vie."  A  life  estate  is  a  freehold  and  is  governed 
by  the  doctrines  relating  to  seisin  and  the  Statute  of  Uses.  It 
may  be  created  either  by  operation  of  law,  or  b}'  a  grant  or  devise, 
or  by  implication  of  law.  When  created  by  grant  the  operative 
words  required  to  define  it  depend  upon  the  local  law  concerning 
the  words  necessary  to  create  a  fee,  since  if  this  requires  the  word 
"  heirs"  in  creating  a  fee  a  grant  without  this  word  would  be  suffi- 
cient to  confer  a  life  estate ;  while  where  a  fee  could  be  created 
without  words  of  inheritance,  words  limiting  the  estate  to  the 
life  of  the  grantee  or  some  other  person  would  be  necessary.  In 
a  devise  the  evident  intention  of  the  testator  will  control.  A  life 
estate  arises  by  implication  of  law  when,  though  its  duration  is 
not  specified,  it  is  created  to  serve  a  use  which  may  continue  for  a 
lifetime.  The  estates  for  life  which  are  created  by  operation  of 
law  are  three:  (1)  Estates  Tail  after  Possibihty  of  Issue  Extinct; 
(2)  Estates  by  Curtesy;  and  (3)  Estates  in  Dower. 

Re7n.  An  estate  per  aider  vie  may  be  directly  created  for  the 
life  of  another  person,  or  may  arise  by  the  transfer  of  an  ex- 
isting life  estate  to  some  person  other  than  the  one  by  whose  life  it 
is  already  limited.  The  owner  of  an  estate  per  aider  vie  is  known 
as  the  "tenant  per  aider  vie" ;  the  person  to  whose  life  the  estate 
is  limited  is  called  the  "cestui  que  vie."  If  the  cestui  que  vie  dies 
before  the  tenant  per  auter  vie,  the  estate  of  course  ceases.  But 
if  the  tenant  dies  before  the  cestui  que  vie,  the  estate  continues, 
though  the  owner  no  longer  exists.  In  this  event  the  law  formerly 
gave  any  person  a  right  to  appropriate  the  estate  and  hold  it  as 
a  "general  occupant,"  but  it  is  now  usually  regarded  as  vesting 
in  the  personal  representatives  of  the  deceased  tenant.  When  an 
estate  per  auter  vie  is  granted  to  the  tenant  and  his  heirs  his  heir, 
grantee,  or  devisee  will  hold  it  after  his  death  if  it  survives  him, 
as  a  "special  occupant."  The  fact  that  a  life  estate  may  be  de- 
feated by  a  future  contingency  does  not  affect  its  legal  character. 
Thus  a  grant  to  a  woman  during  her  widowhood  gives  her  an 
estate  for  life,  though  it  may  terminate  when  she  marries. 

Read:  2  Bl.  Com.,  pp.  120,  121,  258-260; 
4  Kent  Com.,  Lect.  Iv,  pp.  23-27; 


§§  81,  82  ESTATES   IN   REAL   PROPERTY  89 

Washburn,  Real  Property,  §§  220-235; 

Barbour,  Rights  of  Persons  and  Property,  pp.  395-397; 

Clark,  Elementary  Law,  §  199; 

Tiedeman,  Real  Property,  §§  60-82; 

Kerr,  Real  Property,  §§  553-577,  625-647; 

Rice,  Real  Property,  §§  60-63; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  253-258; 

Warvelle,  Real  Property,  pp.  73-75; 

Boone,  Real  Property,  §§  33-35; 

Tiffany,  Real  Property,  §§  30,  3L 


§  81.     Of  Estates  in  Tail  after  Possibility  of  Issue  Extinct. 

An  estate  in  tail  after  'possibility  of  issue  extinct  is  an  estate 
which  was  originally  granted  in  special  tail  but  which,  on  account 
of  the  death  without  living  issue  of  one  of  the  two  persons  from 
both  of  whom  the  special  heirs  must  be  descended,  can  now 
never  be  inherited  but  must  terminate  with  the  life  of  the  present 
tenant  in  tail.  This  tenant  is  entitled  to  enjoy  the  land  and  its 
product  as  if  he  were  a  true  tenant  in  fee,  but  any  attempt  on 
his  part  to  alien  it  beyond  his  own  hfetime  will  forfeit  it  to  the 
reversioner.  This  estate  has  disa|)peared  from  our  law  with 
the  estates  tail  from  which  it  was  derived. 

Rem.  The  law  recognizes  the  birth  of  issue  as  possible, 
whatever  the  age  or  incapacity  of  the  designated  parents,  until 
that  possibility  is  extinguished  by  their  death.  Hence  it  is  only 
out  of  an  estate  in  special  tail  that  this  peculiar  life  estate  could 
arise;  for  a  grantee  in  tail  general,  or  even  in  tail  male  general, 
can  never  be  without  a  possibility  of  issue,  capable  of  inheriting, 
until  his  own  life  is  extinct. 

Read:  2  Bl.  Com.,  pp.  124-126; 
Waslibuni,  Real  Property,  §  218; 
Clark,  Elementary  Law,  §  199; 
Tiedeman,  Real  Property,  §  51; 
Pingrey,  Real  Property,  §  289; 
Tiffany,  Real  Property,  §  34. 

§  82.     Of  Estates  by  Curtesy. 

An  estate  hi/  curtesy  is  tiie  estate  which  a  surviving  husband 
has,  by  operation  of  law,  in  the  real  property  of  his  deceased 
wife  who,  during  their  married  lifetime,  was  seised  of  an  estate 
in  fee  in  such  real  projierty,  and  who  also,  during  their  married 
lifetime,  had  by  him  a  child,  born  alive  and  capable  of  inheriting 


90  ELEMENTARY   LAW  §  82 

the  estate.  To  the  existence  of  this  estate  four  conditions  must 
concur:  (1)  A  vaUd  marriage  between  the  parties;  (2)  Owner- 
ship by  the  wife,  during  the  marriage,  of  a  legal  or  equitable 
estate  in  fee;  (3)  If  her  estate  were  a  legal  estate  in  corporeal 
real  property  either  she,  or  her  husband  for  her,  must  have  been 
seised  of  the  property  at  some  time  during  the  coverture,  or  if 
the  estate  were  equitable,  or  the  property  were  incorporeal,  she 
or  her  husband  for  her  must  have  claimed  and  enjoyed  their 
rights  therein,  during  the  coverture,  according  to  its  nature; 
(4)  A  child  who  could  inherit  the  estate  must  have  been  born 
alive  to  them  during  their  married  lifetime,  though  the  con- 
tinuance of  the  child  in  life  is  immaterial.  Upon  the  fulfil- 
ment of  these  conditions  the  husband  becomes  a  tenant  by 
the  curtesy  initiate  and  entitled  to  many  of  the  privileges  of 
ownership  over  his  wife's  estate;  though  he  may  subsequently 
forfeit  it  in  favor  of  the  wife  by  such  misconduct  on  his  part 
as  results  in  a  divorce  a  vinculo,  or  in  favor  of  her  heirs  by  an 
attempt  on  his  part  to  create  out  of  it  an  estate  greater  than  his 
own.  If  not  thus  forfeited  his  estate  becomes  consuvimate  upon 
her  death,  and  thenceforth  resides  in  him  like  any  other  life 
estate,  and  may  be  sold  or  mortgaged  by  him  or  taken  by  his 
creditors.  At  liis  death  the  property  vests  in  the  heirs  of  the 
wife  as  if  no  hfe  estate  had  existed. 

Rem.  This  estate  was  conferred  by  the  law  of  England  on 
the  husband  partly  for  his  own  benefit  and  partly  for  the  sake  of 
his  children,  the  future  heirs.  The  husband  always  receives  it 
subject  to  the  burdens  which  attend  the  inheritance,  and  may 
lose  it  by  any  contingency  which  would  defeat  the  wife's  estate. 
In  this  country  it  has  undergone  many  statutory  modifications 
and  substitutions,  for  a  knowledge  of  which  recourse  must  be 
had  to  the  current  legislation  of  our  individual  States. 

Read:  2  Bl.  Com.,  pp.  126-128; 
4  Kent  Com.,  Lect.  Iv,  pp.  27-35; 
Washburn,  Real  Property,  §§  313-354; 
Barbour,  Rights  of  Persons  and  Property,  pp.  397-400; 
Walker,  American  Law,  §§  107,  186; 
Andrews,  American  Law,  §  600; 
Clark,  Elementary  Law,  §  199; 
Tiedeman,  Real  Property,  §§  101-110; 
Kerr,  Real  Property,  §§  705-888; 
Pingrey,  Real  Property,  §§  340-354; 
Rice,  Real  Property,  §§  102-117; 


§  83  ESTATES   IN   REAL   PROPERTY  91 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  263-268; 

Warvelle,  Real  Property,  pp.  81,  82;  ^ 

Boone,  Real  Property,  §§  44-51  d;  ^'j 

Tiffany,  Real  Property,  §§  204-212.      t/  I  ^Ar 

§  83.     Of  Estates  in  Dower.  '  Jr 

An  estate  in  dower  is  the  estate  which  a  surviving  wife  has, 
by  operation  of  law,  in  one  third  of  the  real  property  of  her 
deceased  husband  who,  during  their  married  hfetime,  was 
seised  of  such  an  estate  in  fee  in  that  real  property  as  her  children 
by  him,  if  she  had  any,  could  have  inherited.  To  this  estate 
three  conditions  must  concur:  (1)  A  valid  marriage  between  the 
parties:  (2)  Ownership  by  the  husband,  during  the  marriage, 
of  a  legal  or  equitable  estate  in  fee,  which  the  issue  of  the  mar- 
riage could  inherit:  (3)  Seisin  either  in  fact  or  in  law  of  the 
property  by  the  husband  during  the  coverture,  if  it  were  subject 
to  seisin,  or  if  not  then  such  dominion  over  it  as  would  have 
been  equivalent  to  seisin  if  the  property  had  been  legal  and 
corporeal.  The  birth  of  issue  of  the  marriage  is  not  necessary. 
When  these  conditions  have  been  fulfilled  the  right  of  the  wife 
to  her  future  dower  becomes  inchoate,  and  cannot  be  defeated 
by  any  subsequent  act  of  the  husband,  or  his  creditors,  or  other 
parties  claiming  under  him.  But  it  is  not  as  yet  a  vested  right 
which  is  beyond  tlie  influence  of  changes  in  the  law,  nor  is  it 
property  which  she  can  transfer  to  third  parties  by  a  deed, 
though  she  may  estop  herself  from  claiming  it  by  joining  in  a 
conveyance  with  her  husband.  At  the  death  of  the  husband  her 
right  becomes  consummate,  and  is  then  perfected  by  assigning 
to  her  a  definite  portion  of  iiis  estate.  This  may  be  done  volun- 
tarily by  the  heirs  or  grantees  of  the  husband,  or  by  an  officer  of 
the  court  having  jurisdiction  over  his  estate.  The  property 
assigned  to  her  must,  if  possible,  be  of  productive  value;  if  it 
be  land,  it  must  be  designated  by  metes  and  bounds ;  if  in- 
divisible or  incorporeal  the  income  may  be  apportioned,  or  the 
whole  property  be  sold  and  her  share  of  the  proceeds  allotted  to 
her.  Pending  the  assignment  of  dower  she  is  entitled  to  her 
quarantine,  which  consists  in  the  right  to  occupy  the  family 
residence  and  l)e  suj)p<)rte(l  out  of  the  estate.  The  wife  may 
forfeit  iier  right  to  dower  by  an  adulterous  elopement,  or  by 
divorce  a  rincuh)  with  alimonv. 


92  ELEMENTARY   LAW  §  84 

Rem.  The  right  of  a  wife  to  dower,  hke  that  of  a  husband  to 
curtesy,  has  been  changed  in  many  details  in  this  country  by 
local  laws.  Both  dower  and  curtesy  contemplate  landed  prop- 
erty as  the  principal  wealth  of  the  family,  and  are  evident  at- 
tempts to  secure  its  benefits  to  the  surviving  members  of  the 
family  after  the  death  of  its  actual  owner.  Landed  property 
now  occupies  an  inferior  rank  in  this  regard,  and  the  reason  for 
these  estates  is  no  longer  imperative.  Hence  in  some  of  our 
States  they  have  given  place  to  statutory  provisions  in  favor  of 
surviving  wives  and  husbands  which  bear  little  resemblance, 
except  in  purpose,  to  these  ancient  life  estates.  In  other  States 
dower  and  curtesy  are  retained  by  name  and  in  their  general 
features,  but  the  scope  and  character  of  the  rights  which  they 
involve  not  only  vary  in  different  localities  but  change  from 
time  to  time  with  advancing  ideas  of  marital  privileges  and 
obligations. 

Read:  2  Bl.  Com.,  pp.  129-136; 

4  Kent  Com.,  Lect.  Iv,  pp.  35-47,  61-72; 

Washburn,  Real  Property,  §§  335-417,  453-490; 

Barbour,  Rights  of  Persons  and  Property,  pp.  400-408; 

Walker,  American  Law,  §§  107,  180-183,  185; 

Andrews,  American  Law,  §  600; 

Clark,  Elementary  Law,  §  199; 

Tiedeman,  Real  Property,  §§  115-140; 

Kerr,  Real  Property,  §§  889-1090; 

Pingrey,  Real  Property,  §§  355-374,  411-428; 

Rice,  Real  Property,  §§  77-85,  89-93; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  268-280; 

Warvelle,  Real  Property,  pp.  77-81 ; 

Boone,  Real  Property,  §§  52-62  a,  66  6-71  b,  594-610; 

Tiffany,  Real  Property,  §§  179-203. 

§  84.     Of  Estates  in  Lieu  of  Dower. 

To  enable  a  husband  to  avoid  the  restrictions,  imposed  upon 
his  estate  by  the  right  of  his  wife  to  dower,  estates  in  lieu  of 
dower  have  been  devised  and  introduced  into  the  law.  These 
are:  (1)  Jointures;  (2)  Ante-nuptial  and  Post-nuptial  Settle- 
ments; (3)  Testamentary  Provisions.  A  jointure  is  an  estate 
granted  before  the  marriage  either  to  the  prospective  wife  alone, 
or  jointly  to  her  and  her  intended  husband,  providing  for  her 
a  competent  livelihood  of  freehold  out  of  lands  and  tenements, 
to  take  effect  in  profit  or  possession  immediately  after  the  death 
of  the  husband  and  to  continue  during  the  remainder  of  her 
life.  When  this  estate  is  expressly  declared  in  the  grant  to  be 
in  lieu  of  dower,  and  is  accepted  as  such  by  the  prospective  wife 


v/ 


§  85  ESTATES   IN   REAL   PROPERTY  93 

without  fraud  on  the  part  of  the  husband,  it  operates  at  once 
to  discharge  all  his  other  property  from  any  claim  of  dower. 
An  ante-nwptial  settlement  is  an  agreement  made  before  marriage 
between  the  intended  wife  and  husband  whereby,  in  considera- 
tion of  other  property  then  conveyed  or  secured  to  her,  she  from 
that  moment  relinquishes  her  right  to  dower.  A  post-nuptial 
settlement  may  have  the  same  effect  in  equity.  Testamentary 
provisions  are  gifts  by  the  husband  to  his  wife,  by  his  last  will 
and  testament,  in  lieu  of  dower.  These,  if  accepted  by  her 
after  his  death,  extinguish  her  right  to  dower. 

Rem.  Estates  in  lieu  of  dower  generally  enjoy  the  same 
immunities  from  liability  to  the  acts  of  the  husband  or  the  attacks 
of  his  creditors  as  the  right  of  dower  itself;  and  should  such  a 
provision  fail  by  fraud  or  accident  or  defect  of  title  the  right  of 
dower  revives  so  far  as  the  deficiency  requires. 

Read:  2  Bl.  Com.,  pp.  136-139; 
4  Kent  Com.,  Lcct.  Iv,  pp.  48-60; 
Washburn,  Real  Property,  §§418,  490-519; 

Barbour,  Rights  of  Persons  and  Property,  pp.  408-414,  557-569; 
Walker,  Ameiican  Law,  §  184; 
Andrews,  American  Law,  §  498; 
Clark,  Elementary  Law,  §  156; 
Tiedeman,  Real  Property,  §§  147-149; 
Kerr,  Real  Property,  §§  1091-1126; 
Pingrey,  Real  Property,  §§  376-410; 
Rice,  Real  Property,  §§  86-88,  94-101; 
Boone,  Real  Property,  §§  63-66  a,  72-80; 
Tiffany,  Real  Property,  §§  191-193. 

§  85.     Of  the  Enjojonent  of  an  Estate  for  Life. 

The  owner  of  an  estate  for  life  has  a  right  to  the  Jull  enjoy' 
ment  of  the  property,  with  all  its  profits,  during  his  estate;  but 
with  the  exception  of  tenant  in  tail  after  the  possibility  of  issue 
extinct,  he  has  no  right  so  to  use  it  as  to  permanently  impair 
the  value  of  estates  wliich  succeed  his  own.  He  may  take  from 
the  land  such  wood,  not  being  timber  trees,  as  he  requires  for 
fuel  and  for  the  repair  of  his  tools  and  of  the  buildings  and 
fences  on  the  land,  but  not  to  sell  nor  to  use  elsewhere,  nor 
even  to  exchange  for  other  wood  to  be  employed  upon  the  land. 
He  may  work  mines  which  are  already  oj^en,  appropriate  the 
annual  crops,  and  should  his  estate  terminate  between  planting 
and   harvest,    without   his   own   fault,  the  crops  then  growing 


94  ELEMENTARY   LAW  §  86 

belong  to  him  and  he  or  his  representatives  may  cultivate  them 
until  they  are  ripe,  and  then  remove  them  as  emblements.  He 
may  also  lease  the  property  to  undertenants,  who  will  have  the 
same  right  to  emblements  as  himself;  or  may  mortgage  or  sell 
his  own  estate,  or  render  it  liable  to  be  taken  on  execution  by 
his  creditors,  or  may  insure  it  on  his  own  behalf.  It  is  his  duty 
to  pay  the  current  taxes  and  assessments  against  the  property, 
keep  down  the  interest  on  incumbrances,  preserve  the  property 
in  reasonable  repair,  and  bear  the  entire  expense  of  any  iin- 
provements  he  may  make  upon  it.  Any  injury  he  may  inflict 
upon  the  property  which  permanently  impairs  its  value  is 
waste,  and  may  be  stopped  by  injunction  or  result  in  an  action 
for  damages,  or  in  the  forfeiture  of  his  estate. 

Rem.  The  asseHible  seisin  of  the  land  resides  in  the  life 
tenant,  and  during  the  continuance  of  his  estate  the  seisin  of 
the  reversioner  is  dormant;  no  new  estates  requiring  livery  of 
seisin  can  be  created  in  the  property ;  nor  can  any  other  estates 
in  dower  or  curtesy  arise  out  of  the  inheritance ;  nor  is  the  owner 
of  the  fee  affected  by  the  entry  of  an  intruder  claiming  title  and 
ejecting  the  life  tenant  from  the  land.  A  reversioner  may,  how- 
ever, assign  his  interest  in  the  land  pending  an  estate  for  life, 
and  with  it  all  its  incidental  rights  and  remedies. 

Read:  2  Bl.  Com.,  pp.  122-124; 
4  Kent  Com.,  Lect.  Iv,  pp.  73-75; 
Washburn,  Real  Property,  §§  236-312; 
Barbour,  Rights  of  Persons  and  Property,  pp.  426-430; 
Walker,  American  Law,  §  139; 
Andrews,  American  Law,  §§  598,  599; 
Tiedeman,  Real  Property,  §§  72-82; 
Kerr,  Real  Property,  §§  578-624,  648-704; 
Smith,  Personal  Property,  §§  13-16; 
Pingrey,  Real  Property,  §§  293-322; 
Rice,  Real  Property,  §§  64-76; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  258-263; 
Warvelle,  Real  Property,  pp.  75-77; 
'  Boone,  Real  Property,  §§  36-43,  113-120; 
Tiffany,  Real  Property,  §  32. 

§  86.     Of  Estates  at  WilL 

An  estate  at  ivill  is  an  estate  so  created  as  to  be  able  to  endure 
until  terminated  by  the  act  of  one  of  the  parties  thereto.  This 
estate  may  arise  either  by  express  grant  or  by  implication  of 
law.    When  created  by  express  grant  it  must  clearly  appear  that 


§  86  ESTATES  IN  REAL  PROPERTY  95 

the  estate  is  to  be  held  at  will,  for  the  law  does  not  favor  this 
estate  and  will,  if  possible,  construe  the  grant  as  the  conveyance 
of  a  more  stable  interest  in  the  land.  An  estate  at  will  arises  by 
implication  of  law  whenever  one  person  enters  upon  and  occupies 
the  land  of  another  neither  claiming  a  freehold  title  in  himself, 
nor  having  received  from  the  owner  any  specified  estate,  nor 
paying  rent  at  any  stated  periods  of  time.  Anciently,  the  right 
to  terminate  the  estate  resided  in  the  lord  alone ;  later  it  became 
equally  the  privilege  of  either  party.  The  landlord  may  extin- 
guish it  by  entering  and  evicting  the  tenant,  or  by  conveying  the 
land  to  a  third  party,  or  by  creating  in  it  estates  inconsistent 
with  the  estate  at  will.  The  tenant  may  terminate  it  by  per- 
manently abandoning  the  property.  It  ceases  also  with  the 
death  of  either  party.  During  its  continuance  the  tenant  has 
the  full  enjoym£nt  of  the  land,  and  may  take  wood  for  repairs 
and  fuel,  work  open  mines,  underlet  to  third  parties,  and 
raise  and  gather  crops,  and  if  his  estate  ceases  between  planting 
and  harvest,  without  his  fault,  he  can  claim  the  emblements. 

Rem.  An  estate  at  will,  is  at  best,  but  a  mere  scintilla  of 
interest,  a  transitory  right  to  possess  land  and  enjoy  its  benefits ; 
not  such  an  estate  as  the  tenant  can  convey  or  even  vindicate 
against  the  landlord  in  a  court  of  law.  Although  such  estates 
are  sometimes  now  created,  they  have  largely  given  place  to  the 
equally  convenient  but  more  permanent  and  flexible  estates, 
known  as  "estates  from  year  to  year." 

Read:  2  Bl.  Com.,  pp.  145-150; 
4  Kent  Com.,  Lect.  Ivi,  p.  Ill; 
Washburn,  Real  Property,  §§  762-796; 
Barbour,  Rights  of  Persons  and  Property,  pp.  440-442; 
Walker,  American  Law,  §  144; 
Andrews,  American  Law,  §  603; 
Clark,  Elementary  Law,  §  200; 
Tiedeman,  Real  Property,  §§  212-216; 
Kerr,  Real  Property,  §§  1378-1414; 
Pingrey,  Real  Property,  §§  616-627; 
Rice,  Real  Property,  §  151 ; 

Kirchwoy,  Readings  on  the  Law  of  Real  Property,  pp.  290-295 
Warvellc,  Real  Property,  pp.  89,  90; 
Boone,  Real  Property,  §§  121-123; 
Tiffany,  Real  Property,  §§54,  55. 


96  ELEMENTARY   LAW  §  87 

§  87.     Of  Estates  from  Year  to  Year. 

An  estate  from  year  to  year  is  an  estate  so  created  as  to  be 
able  to  endure  for  at  least  one  year,  and  unless  then  terminated, 
by  the  act  of  one  of  the  parties,  to  continue  for  a  second  year, 
and  so  onward  year  after  year  until  thus  determined.  This 
estate  was  developed  out  of  estates  at  will  by  custom  and  judicial 
legislation.  The  inconvenience  attending  the  sudden  and  un- 
expected termination  of  estates  at  will  early  gave  rise  to  a  custom 
of  requiring  either  party  to  give  timely  notice  to  the  other  of  his 
intention  to  determine  the  estate  at  a  definite  future  date.  Where 
rent  was  reserved  payable  annually,  or  where  the  lands  were 
agricultural  and  the  interests  of  the  tenant  required  that  he 
should  be  permitted  to  remain  and  complete  his  agricultural 
year,  custom  adopted  the  end  of  the  year  as  the  date  when  such 
notice  must  be  made  to  take  effect.  Out  of  these  customs  grew 
the  presumption  that  whenever  one  person  occupies  the  land  of 
another  without  a  lease  declaring  the  duration  of  his  estate, 
but  paying  rent  yearly  or  at  aliquot  parts  of  a  year,  the  estate 
intended  by  the  parties  was  an  estate  from  year  to  year,  term- 
inable by  either  party  at  the  end  of  any  year  by  giving  reason- 
able notice  to  the  other.  This  presumption  received  the  judicial 
sanction  of  the  courts,  and  thus  gave  to  these  new  customary 
estates  an  established  position  before  the  law.  Estates  from 
year  to  year  are  true  estates,  may  be  enforced  in  law,  are 
assignable  by  the  tenant,  and  at  his  death  vest  in  his  personal 
representatives.  During  their  existence  the  tenant  has  the 
sam£  enjoyment  of  the  land  as  a  life  tenant,  but  cannot  claim 
the  crops  which  he  has  planted  unless  they  ripen  and  are 
gathered  before  the  termination  of  his  estate. 

Rem.  How  long  before  the  proposed  termination  of  an  estate 
from  year  to  year  the  notice  must  be  given  may  be  prescribed  by 
the  agreement  of  the  parties,  or  by  local  custom,  or  by  reasonable 
intendment  of  law.  Where  no  other  rule  prevails  notice  should 
be  given  on  the  rent  day  next  preceding  the  close  of  the  year. 
Akin  to  these  estates  are  other  interests  in  lands  for  longer  or 
shorter  periods,  as  from  movth  to  month,  week  to  Aveek,  or  quarter 
to  quarter,  which  are  recognized  in  some  localities  where  cus- 
tom has  established  these  as  rent  periods,  with  the  privilege  in 
either  party  to  terminate  the  estate  at  any  rent  day  by  giving 
notice  on  the  rent  day  next  preceding. 


§  88  ESTATES   IN   REAL   PROPERTY  97 

Read:  2  Bl.  Com.,  p.  147,  note; 

4  Kerxt  Com.,  Lect.  Ivi,  pp.  112-116; 
Washburn,  Real  Property,  §§  797-824; 
Barbour,  Rights  of  Persons  and  Property,  pp.  443-446; 
Andrews,  American  Law,  §  605; 
Clark,  Elementary  Law,  §  200; 
Tiedeman,  Real  Property,  §§217-219; 
Kerr,  Real  Property,  §§  141.5-1458; 
Pingrey,  Real  Property,  §§  628-646; 
Rice,  Real  Property,  §  153; 
Boone,  Real  Property,  §§  124-124  a; 
.  Tiffany,  Real  Property,  §§  57-59. 

y 

§  86.     Of  Estates  for  Years. 

An  estate  for  years  is  an  estate  so  created  as  to  begin  and  end 
at  certain  specified  dates.  It  is  called  a  term,  from  terminus,  on 
account  of  its  predetermined  duration  which  may  be  for  a  day, 
a  year,  a  century,  or  any  other  fixed  period.  It  is  created  by 
an  express  grant,  called  a  lease,  and  may  be  made  to  take  effect 
immediately  or  at  any  designated  future  time.  Tlie  rights  and 
'privileges  of  a  tenant  for  years  are  substantially  the  same  as 
those  of  a  tenant  for  life,  except  when  varietl  by  the  provisions 
of  his  lease.  He  may  take  wood  for  fuel  and  repairs,  work 
open  mines,  erect  and  remove  buildings,  raise  and  gather  crops, 
and  if  his  estate  terminates,  without  his  fault  or  its  own  limita- 
tion, between  planting  and  harvest  he  may  continue  to  cultivate 
and  appropriate  iiis  annual  crops.  He  may  also  assign  or 
underlet,  and  if  he  dies  before  his  estate  ceases  it  will  vest  in  his 
personal  representatives.  His  principal  obligations  are  to  pay 
his  stipulated  or  customary  rent,  keep  the  premises  in  suitable 
repair,  and  surrender  them  to  the  landlord  at  the  expiration  of 
his  term.  He  is  liable  for  waste,  actual  or  permissive,  not  only 
to  the  landlord  but  to  any  third  person  who  may  suffer  from  the 
ruinous  condition  of  the  premises. 

Rem,.     An  estate  for  years  may  exist  in  cither  of  three  stages: 

(1)  The  contract  stage,  which  continues  from  the  making  of  the 
lease  to   the  date   fixed   for  tlic  conunencement  of  the  estate; 

(2)  The  interesse  termini,  which  continues  from  the  date  fixed 
for  the  commencement  of  the  estate  to  tiie  date  when  the  tenant 
enters  and  takes  jiossession ;  (.3)  The  perfect  stage,  which  con- 
tinues from  the  entry  of  the  tenant  to  the  end  of  the  estate.  Dur- 
ing the  contract  stage  the  tenant  has  no  estate  in  the  land,  but 

7 


98  ELEMENTARY   LAW  §  89 

all  possessory  rights  thereto  reside  in  the  landlord.  During  the 
interesse  termini  the  tenant  has  a  right  to  immediate  possession, 
but  the  actual  possession  still  vests  in  the  landlord  and  remedies 
for  injuries  to  it  must  be  instituted  by  him.  During  the  perfect 
stage  the  tenant  has  the  actual  possession  and  may  sue  for  all 
injuries  thereto  which  do  not  exclusively  affect  the  rights  of  the 
reversioner. 
Read:  2  Bl.  Com.,  pp.  140-145; 

4  Kent  Com.,  Lect.  Ivi,  pp.  85-110; 

Washburn,  Real  Property,  §§  605-761; 

Barbour,  Rights  of  Persons  and  Property,  pp.  432^39; 

Walker,  American  Law,  §§  140-143; 

Andrews,  American  Law,  §§  601,  602; 

Clark,  Elementary  Law,  §  200; 

Tiedeman,  Real  Property,  §§  171-200; 

Kerr,  Real  Property,  §§  1127-1377; 

Pingrey,  Real  Property,  §§  478-600; 

Rice,  Real  Property,  §§  118-150; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  281-289; 

Warvelle,  Real  Property,  pp.  84-89,  391-398; 

Boone,  Real  Property,  §§  12  fe,  81-105  c,  106-112  a; 

Tiffany,  Real  Property,  §§  35-53. 

§  89.     Of  Estates  by  Sufferance. 

An  estate  by  ftujjermtce  is  an  estate  which  exists  by  implication 
of  law  in  one  who  wrongfully  continues  in  possession  of  real 
property  after  the  estate,  by  virtue  of  which  he  obtained  the 
rightful  possession,  has  terminated.  Such  an  estate  is  that  of  a 
tenant  per  auter  vie,  who  holds  over  after  the  death  of  the  cestui 
que  vie,  or  a  tenant  for  years  who  fails  to  vacate  the  premises 
when  his  lease  expires.  But  though  his  possession  is  wrongful 
the  occupant  is  not  a  trespasser  until  the  landlord  enters  to  evict 
him,  and  in  the  meantime  he  may  defend  his  possession  against 
all  intruders.  He  has  no  right  to  take  the  profits  of  the  soil, 
nor,  when  expelled,  to  gather  the  crops  which  he  has  planted 
since  his  original  estate  determined.  He  is  not  entitled  to  notice 
to  quit,  and  could  once  have  been  summarily  and  forcibly  ejected 
at  the  will  of  the  landlord ;  but  such  violent  measures  are  not  now 
permitted,  and  if  he  does  not  retire  upon  the  entry  of  the  land- 
lord the  latter  must  seek  his  remedy  in  an  action  at  law.  The 
landlord  may  treat  the  wrongful  possession  as  an  offer  of  the 
tenant  to  renew  the  lease,  and  by  accepting  the  offer  and  receiving 
rent  may  convert  the  estate  by  sufferance  into  an  estate  from 
year  to  year. 


§  89  ESTATES   IN   REAL  PROPERTY  99 

Rem.  An  estate  by  sufferance  is  not  a  true  estate,  but  belongs 
rather  to  that  class  of  interests  in  real  property  which  are  known 
to  our  modern  law  as  quasi  estates.  Quasi  signifies  resemblance 
with  differences;  as  in  the  phrases  ''quasi  contract,"  or  "quasi 
corporation,"  which  denote  legal  entities  similar  to  but  not 
identical  with  contracts  and  corporations.  Thus  a  quasi  estate 
has  some  of  the  attributes  of  a  true  estate  and  is  wanting  in  others ; 
the  estate  by  sufferance,  for  example,  containing  an  actual  pos- 
session with  a  right  of  possession  against  strangers  but  neither 
ownership  nor  a  possessory  right  against  the  landlord.  Other 
instances  of  quasi  estates  are:  (1)  Possibility  of  Reverter, 
which  is  a  right  residing  in  the  grantor  of  a  fee  simple  and  his 
heirs  to  claim  the  reversion  in  the  granted  property  in  case  the 
fee  simple  so  granted  should  chance  to  fail,  —  as  where  the 
grantee  is  a  charitable  corporation  which  is  afterward  dissolved, 
or  where  the  purpose  of  the  grant  is  satisfied  without  exhausting 
the  property;  (2)  License,  which  is  a  permission  given  by  the 
owner  of  property  to  another  person  to  do  some  act  or  enjoy 
some  privilege  therein,  and  which  is  entirely  personal  between 
the  parties,  is  not  assignable,  and  is  revocable  by  the  death  of 
either  i)arty,  or  at  the  will  of  the  licensor  except  in  cases  where 
his  conduct  has  estopped  him  from  revoking  it  until  its  object 
is  accomplished;  (3)  Rights  arising  by  Estoppel,  which  are 
rights  in  property  enforcible  against  particular  individuals 
only,  and  against  them  because  of  some  wrongful  action  or 
omission  which  now  legally  prevents  them  from  denying  that 
such  rights  exist,  —  as  where  the  owner  of  land  knowingly  per- 
mits an  innocent  party  to  purchase  it  in  good  faith  and  for  valu- 
able consideration  from  a  person  having  an  apparent  but  not  an 
actual  title  to  the  land,  and  is  on  that  account  forbidden  by  the 
law  to  assert  his  own  valid  title  against  the  invalid  title  thus 
acquired.  Qua.si  estates  are  protected  by  the  law,  according  to 
the  nature  and  scope  of  the  ingrediental  rights  which  they  con- 
tain, equally  with  the  true  estates  before  described. 

Read:  2  BI.  Com.,  pp.  150,  151; 

3  Kent  Com.,  Lect.  Hi,  pp.  452,  453; 

4  Kent  Com.,  Lect.  hi,  pp.  116-118; 

Washburn,  Real  Property,  §§  168,  170,  82.5-850,  1512,  1889-1943; 

Barbour,  Rights  of  Persons  and  Property,  pp.  446,  447; 

Walker,  American  Law,  §  144; 

Andrews,  American  Law,  §  604; 

Clark,  Elementary  Law,  §  200; 

Tiedeman,  Real  Property.  §§  225-228,  651-654,  724-731; 

Kerr,  Real  Property,  §§  1459-1474,  2275; 

Pingrey,  Real  Property,  §§  261-275,  647-659; 

Jones,  Easements,  §§  6,3-79; 

Rice,  Real  Property,  §§  152,  154-159,  203,  254,  346-353; 


100  ELEMENTARY   LAW  §  90 

Karchwey,  Readings  on  the  Law  of  Real  Property,  pp.  296-299, 

303-366; 
Warvelle,  Real  Property,  pp.  62,  63,  90,  91; 
Boone,  Real  Property,  §§  125-127  a; 
Tiffany,  Real  Property,  §§  60-63,  116,  117,  304,  456,  457. 


,f     OF    J 


Article  IV 

OF    ABSOLUTE    AND   CONDITIONAL    ESTATES    IN    REAL    PROPERTY 

Of  Estates  upon  Condition. 
Estates,  whatever  their  duration,  are  either  absolute  or  con- 
ditional. An  absolute  estate  is  an  estate  whose  existence  is  in- 
dependent and  unquahfied.  A  conditional  estate  is  an  estate 
so  created  as  to  come  into  existence,  or  be  enlarged  or  be  de- 
feated, upon  the  happening  or  not  happening  of  some  contin- 
gent event.  Where  a  condition  must  be  fulfilled  before  the  estate 
can  come  into  existence  or  be  enlarged,  it  is  called  a  condition 
'precedent;  and  if  its  fulfilment  should  be  impossible  or  unlawful 
the  estate  can  never  vest  or  be  enlarged.  Where  the  fulfilment 
of  a  condition  would  destroy  an  estate  already  vested  it  is  a 
condition  subsequent,  and  if  the  performance  of  this  condition  be 
impossible  or  unlawful  the  estate  can  never  be  defeated.  Some 
conditions  are  implied  by  laio  from  the  nature  of  the  estate  to 
which  they  are  attached,  as  that  a  tenant  of  lands  shall  not 
commit  waste,  or  that  the  grantee  of  an  office  shall  perform 
its  duties.  Other  conditions  exist  only  when  expressed  in  the 
grant  creating  the  estate.  A  condition  once  annexed  to  an 
estate  follows  it  through  all  changes  of  ownership  until  it  is 
fulfilled,  released,  or  extinguished  by  the  act  of  the  parties  or 
of  the  law. 

Rem.  Under  the  feudal  law  all  estates  were  conditional,  being 
held  by  the  tenant  upon  the  rendition  of  stipulated  or  custo- 
mary services.  The  relation  between  the  lord  and  the  tenant 
was  known  as  tenure,  and  the  tenures  differed  with  the  condi- 
tions imposed  upon  the  tenant  and  the  legal  dignity  of  his  estate. 
Such  tenures  were  once  of  great  variety,  but  gradually  disap- 
peared with  the  decay  of  the  feudal  system,  until  with  a  single 
exception  all  lay  freehold  tenures  were  abolished  in  A.  d.  1660 
by  the  Statute  12  Charles  II.  In  this  country  feudal  tenures 
never  existed.     All  tenure  is  "aUodial  ";  which  signifies  that 


§  91  ESTATES   IN   REAL   PROPERTY  101 

estates  are  free  from  feudal  burdens  and  are  held  under  no  feudal 
superior.  Conditional  estates  indeed  exist,  but  the  eonditions 
originate  in  eontract  between  the  parties,  and  characterize  or 
qualify  the  estates  to  which  they  are  attached  but  not  the  tenure 
under  which  the  estates  are  held. 

Read:  2  Bl.  Com.,  pp.  152-154; 

4  Kent  Com.,  Leot.  Ivii,  pp.  121-126; 

Washburn,  Real  Property,  §§  935-950; 

Barbour,  Right.s  of  Persons  and  Property,  pp.  303,  304,  448-461; 

Walker,  American  Law,  §  152; 

Andrews,  .•American  Law,  §  617; 

Clark,  Elementary  Law,  §  202; 

Tiedeman,  Real  Property,  §§  271-276; 

Kerr,  Real  Property,  §§  218-225,  1873-1893; 

Pingrey,  Real  Property,  §§  39-41,  736-746; 

Rice,  Real  Property,  §§  20-29,  278-288; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  78-139, 

300-315; 
Warvelle,  Real  Property,  pp.  106-114; 
Boone,  Real  Property,  §§  22,  202-208; 
Tiffany,  Real  Property,  §§  64-70; 

Bolles,  Important  English  Statutes,  p.  86,  Act  12  Charles  II,  ch.  S4, 
Abolishing  Feudal  Tenures. 

§  91.     Of  the  Fulfilment  and  Breach  of  Conditions. 

The  occurrence  of  the  event  which  constitutes  a  condition 
precedent  is  called  the  fulfilment  of  the  condition ;  the  hapj^ening 
of  the  event  which  forms  a  condition  subsequent  is  called  a 
breach  of  condition.  Neither  the  fulfilment  nor  the  breach  of 
a  condition  of  itself  either  vests  or  defeats  the  conditional  estate. 
Where  a  condition  precedent  is  fulfilled  the  person  in  whom 
the  estate  is  now  ready  to  vest  must  enter  and  assert  his  right, 
or  the  property  will  remain  in  the  former  owner.  When  a  con- 
dition subsequent  is  broken  the  person  in  whose  favor  the  estate 
is  now  forfeited  must  take  possession  and  einct  the  owner  of 
the  conditional  estate,  or  he  will  continue  to  enjoy  it  as  before 
the  breach  occurred. 

Rem.  As  the  breach  of  a  condition  subsequent  creates  noth- 
ing, but  sinij)ly  destroys  an  existing  estate,  it  necessarily  enures 
only  to  the  benefit  of  him  out  of  who.se  estate  the  contlitional 
estate  was  carved,  —  that  is,  the  grantor  and  his  heirs,  —  and 
none  but  tiiese  can  enter  and  assume  jjossession  of  the  land. 
The  common  law  did  not  allow  fhcju  to  assign  this  right,  since 
that  would  be  the  transfer  of  a  possibh-  litigation,  and  hence 
until  thev  intervened  the  grantee  of  the  conditional  estate  con* 


102  ELEMENTARY   LAW  §  92 

tinued  in  possession  undisturbed.  Where  the  conditional  estate 
is  less  than  a  fee  simple  our  modern  law  permits  the  grantor  to 
assign  his  possible  reversion,  and  with  it  the  right  to  take  ad- 
vantage of  the  breach  of  condition. 

Read:  2  Bl.  Com.,  pp.  156,  157; 

4  Kent  Com.,  Lect.  Ivii,  pp.  122,  123,  127; 

Washburn,  Real  Property,  §§  951-969; 

Tiedeman,  Real  Property,  §§  277-279; 

Kerr,  Real  Property,  §§  1894-1905; 

Pingrey,  Real  Property,  §§  746-776; 

Jones,  Real  Property,  §§  708-999; 

Rice,  Real  Property,  §§  291,  292; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  358-363; 

Warvelle,  Real  Property,  pp.  114,  115; 

Boone,  Real  Property,  §§  209-213; 

Tiffany,  Real  Property,  §§  71-77. 


'v92.     Of  Estates  in  Mortgage. 

One  of  the  most  important  of  estates  upon  condition  sub- 
sequent was  an  estate  in  mortgage,  as  that  estate  existed  at 
common  law.  A  mortgage  estate  was  an  estate  created  by  a 
debtor  in  favor  of  his  creditor  to  secure  the  payment  of  the 
debt.  For  this  purpose  the  debtor  conveyed  to  the  creditor 
an  immediate  estate  in  fee,  conditioned  to  be  void  if  the  debtor 
paid  the  debt  at  a  certain  day,  but  otherwise  to  remain  absolute 
in  the  creditor  and  his  heirs  forever.  Between  the  date  of  the 
conveyance  and  pay-day  the  creditor  had  the  seisin  of  the  in- 
heritance with  all  its  incidental  rights  of  curtesy  and  dower. 
If  the  debt  were  paid  at  pay-day  the  estate  of  the  creditor  was 
instantly  defeated,  and  the  debtor  could  enter  and  take  possession 
as  of  his  former  estate.  If  the  debt  were  not  paid  at  pay-day 
the  debtor  lost  all  right  to  pay  it  and  redeem  the  land,  and  the 
estate  of  the  grantor  became  indefeasible.  Such  was  a  mortgage 
at  common  law  —  a  pure  specimen  of  estates  upon  condition 
subsequent.  When  courts  of  equity  were  established,  however, 
the  nature  of  a  mortgage  underwent  a  gradual  change.  These 
courts  maintained  that  a  forfeiture  arising  from  a  mere  delay  ir 
paying  money  was  unreasonable,  and  undertook  to  protect  the 
debtor  against  the  loss  of  his  estate  by  compelling  the  creditor 
to  accept  payment  at  a  later  day  and  release  the  land.  The 
right  thus  vested  in  the  debtor  to  make  the  payment  after  pay- 
day and  redeem  the  land  was  called  his  "equity  of  redemption," 


§  92  ESTATES   IN   REAL   PROPERTY  103 

and  under  the  rules  of  equity  could  not  be  extinguished  except 
by  a  new  agreement  between  the  parties  or  the  decree  of  the 
court  itself.  When  the  creditor  desired  to  enforce  payment 
he  was  therefore  obliged  to  apj)ly  to  the  court  by  a  petition  for 
foreclosure,  upon  which  the  court,  after  due  hearing,  fixed  a 
day  for  payment,  and  if  the  debtor  failed  to  pay  upon  that  day 
he  forfeited  his  equity  of  redemption,  and  the  estate  of  the 
creditor  became  absolute  in  equity  as  well  as  in  law.  In  like 
manner,  when  the  debtor  wished  to  pay  and  the  creditor  refused 
to  receive  payment,  the  debtor  could  bring  his  petition  to  redeem, 
with  a  similar  result.  It  also  seemed  to  courts  of  equity  un- 
reasonable that  the  debtor  should  forfeit  the  entire  property  for 
the  non-payment  of  a  debt  of  inferior  value,  and  that  justice 
to  both  parties  required  that  he  should  receive  only  the  amount 
of  his  claim  with  interest  and  costs.  Hence  arose  the  practice 
of  selling  the  property  on  the  decree  of  foreclosure;  paying  the 
debt,  interest,  and  costs  out  of  the  proceeds ;  and  returning 
the  surplus  to  the  debtor.  Under  these  rules  of  equity  a  mortgage, 
though  still  having  the  form  of  a  true  estate,  is  nothing  more 
than  a  lien  upon  the  land,  —  that  is,  a  right  to  have  the  land 
subjected  to  the  payment  of  the  debt  by  a  foreclosure  sale; 
the  seisin  and  its  incidental  rights  remaining  always  in  the 
debtor  till  the  sale  occurs.  The  extent  to  which  these  changes 
have  progressed  is  not  uniform  in  our  American  States.  In  some, 
the  creditor  is  still  considered  as  holding  a  legal  estate  and  is 
entitled  to  the  seisin  from  the  date  of  the  conveyance.  In  others, 
he  has  an  equitable  estate  but  no  seisin  until  after  pay-day,  and 
then  may  take  })ossession  of  the  land  and  retain  it  until  fore- 
closure or  redemption.  In  still  others,  the  mortgage  is  nothing 
but  a  lien,  to  be  made  effective  by  a  foreclosure  sale.  The  ten- 
dency in  all  States  is  toward  the  adoption  of  the  doctrine  that 
the  mortgage  is  a  lien;  that  the  debt  secured  is  the  principal 
thing  and  the  mortgage  is  collateral  to  it;  and  that  the  mort- 
gage like  the  debt  is  a  chattel  interest  which  passes  with  the 
transfer  of  the  debt,  and  uj)on  the  death  of  the  creditor  goes 
to  his  executor  and  not  to  his  heir. 

Rem.     Landed  securities  for  debt  assume  many  other  forms 
beside  the  one  above  described.    Among  these  are :   (1)  Deeds  of 


104  ELEMENTARY  LAW  §  92 

Trust,  where  the  debtor  conveys  the  land  to  third  persons,  with 
power  to  sell  on  his  default  of  payment,  and  apply  the  proceeds 
to  the  cancellation  of  the  debt;  (2)  Vendor  s  Lien,  or  the  right 
of  the  vendor  of  real  property  to  treat  it  as  security  for  the  pur- 
chase money,  until  the  price  is  fully  paid ;  (3)  Vendee's  Lien,  or 
the  right  of  the  buyer  of  real  property  to  treat  it  as  security  for 
any  advance  payments  he  may  make  while  the  title  still  resides 
in  the  vendor;  (4)  Mechanic  s  Lien,  or  the  right  of  a  person, 
who  has  incorporated  his  materials  or  labor  into  the  land  of 
another  at  its  owner's  request,  to  treat  the  land  as  security  for 
the  payment  of  his  claim ;  (5)  Judgment  Lien,  or  the  right  of  a 
judgment  creditor  to  treat  all  lands  owned  by  the  debtor  at  the 
date  of  the  judgment  as  security  for  its  payment;  (6)  Welsh 
Mortgage,  in  which  the  creditor  occupies  the  land  of  the  debtor 
until  the  debt  is  paid,  enjoying  its  use  in  lieu  of  interest  on  the 
debt ;  (7)  Vivum  Vadium,  in  which  the  creditor  holds  the  land 
of  the  debtor,  and  applies  the  rents  and  profits  to  the  payment 
of  the  principal  and  interest  until  the  debt  is  paid;  (8)  Estates 
by  Statute  Merchant  and  Statute  Staple,  which  are  estates  created 
for  the  protection  of  tradesmen,  and  conferring  the  same  rights 
as  the  vivum  vadium  ;  (9)  Estates  hy  Elegit,  which  is  an  estate  of 
vivum  vadium  created  by  the  levy  of  an  execution  on  one  half 
of  the  lands  of  the  debtor.  The  first  five  of  these  require  a  sale 
or  foreclosure  to  render  them  effectual.  The  remaining  four 
operate  of  themselves  to  satisfy  the  debt.  A  creditor  having 
possession  of  the  land  of  his  debtor  under  any  of  these  forms 
of  security  is  obliged  to  keep  it  in  proper  condition,  account  for 
its  rents  and  profits  and  apply  them  on  the  debt,  and  surrender 
the  property  to  the  debtor  when  the  debt  is  paid. 

Read:  2  Bl.  Com.,  pp.  157-162; 

4  Kent  Com.,  Lect.  Iviii,  pp.  136-194; 

Washburn,  Real  Property,  §§  974-1184; 

Barbour,  Rights  of  Persons  and  Property,  pp.  461-470,  483-497; 

Walker,  American  Law,  §§  154,  155-160,  173; 

Andrews,  American  Law,  §§  617,  793; 

Clark,  Elementary  Law,  §  202 ; 

Tiedeman,  Real  Property,  §§  287-376,  647,  648; 

Kerr,  Real  Property,  §§  2030-2173; 

Jones  on  Mortgages,  §§  1-16,  58,  59,  62; 

Pingrey,  Real  Property,  §§  759-988; 

Rice,  Real  Property,  §§  293-324; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  402-406, 

525-529; 
Warvelle,  Real  Property,  pp.  116,  117,  365-391,  398-408; 
Boone,  Real  Property,  §§  215-245; 
Tiffany,  Real  Property,  §§  110-112,  506-577. 


§§93,94  ESTATES    IN    REAL   PROPERTY  105 

§  93.     Of  Limitations. 

A  limitation  is  an  estate  which  somewhat  resembles  an  estate 
upon  condition  subsequent  in  the  form  of  the  grant,  but  differs 
from  it  entirely  both  in  its  nature  and  its  effect.  It  is  an  estate  so 
created  as  to  endure  while  a  certain  state  of  circumstances  exists, 
and  subject  to  be  defeated  should  a  change  in  such  circumstances 
occur  before  it  would  otherw'ise  expire.  Thus  an  estate  granted 
to  a  woman  as  long  as  she  remains  unmarried  will  continue  for 
her  life  unless  she  marries,  but  if  she  marries  will  at  once  de- 
termine. Such  an  estate  is  not,  however,  regarded  by  the  law  as 
an  estate  for  life  upon  condition  subsequent,  to  be  forfeited  by 
marriage  and  requiring  an  entry  by  the  grantor  to  regain  his 
former  estate.  On  the  contrary,  her  marriage  legally  termi- 
nates the  state  of  circumstances  which  the  grant  had  fixed  as  the 
duration  of  her  estate,  and  her  estate,  therefore,  ipso  facto  ceases, 
leaving  the  reversioner  in  complete  dominion  of  the  land. 

Rem.  Some  confusion  exists  as  to  the  names  applied  to  this 
estate.  By  Blackstone  and  other  writers  it  is  called  simply  "a 
limitation."  Lyttleton  styles  it  "a  condition  in  law  "  ;  Kent,  "a 
collateral  limitation  " ;  Washburn,  "a  conditional  limitation." 
When  the  estate  granted  is  a  fee  it  is  denominated  "a  qualified 
fee,"  or  "a  base  fee"  or  a  "determinable  fee."  Each  of  these 
names  expresses  some  essential  attribute  of  the  estate,  but  none 
of  them  correspond  precisely  with  its  legal  definition. 

Read:  2  Bl.  Com.  pp.  155,  156; 
4  Kent  Com.,  Lect.  Ivii,  p.  129; 
Washburn,  Real  Property,  §§  164-172,  970,  971; 
Tiedeman,  Real  Property,  §§  280,  281; 
Pingrey,  Real  Property,  §§  757,  758; 
Rice,  Real  Property,  §§  289,  290; 
Tiffany,  Real  Property,  §§  78-81. 

§  94.    Of  Conditional  Limitations. 

A  conditional  limitation  is  another  estate  which  resembles  in 
some  respects  an  estate  upon  condition  subsequent  but  which 
differs  from  it  in  its  essential  character.  A  conditional  limitation 
is  an  estate  granted  at  the  same  time  with,  but  to  take  effect  after, 
a  preceding  estate  in  case  the  preceding  estate  should  be  pre- 
maturely determined  by  the  breach  of  some  condition  upon 
which  it  is  held.  Thus,  where  an  estate  is  granted  to  a  woman 
for  life  provided  she  remains  unmarried,  and  in  case  of  her  mar- 


106  ELEMENTARY   LAW  §  95 

riage  to  vest  in  her  eldest  unmarried  sister,  the  sister's  estate  would 
be  a  conditional  limitation.  This  is  not  an  estate  upon  condition 
subsequent,  because  the  breach  of  the  condition  enures  to  the 
benefit  of  a  third  person  and  not  of  the  grantor  and  his  heirs ; 
but  is  an  estate  limited  to  take  effect  after  the  termination  of  a 
particular  estate  which,  in  the  absence  of  the  limitation  over, 
would  have  been  an  estate  upon  condition.  It  is  not  a  particular 
estate  followed  by  a  contingent  remainder,  because  the  law  does 
not  allow  a  contingent  remainder  to  be  limited  upon  a  contin- 
gency which  abridges  the  particular  estate.  It  is  a  peculiar  estate, 
of  comparatively  recent  origin,  and  appears  most  frequently  in 
wills,  where  it  affords  testators  great  facility  in  providing  alter- 
nate or  substitute  estates  to  meet  the  changing  fortunes  of  their 
prospective  families. 

Rem.  Conditional  limitations  can  exist  only  as  equitable 
estates,  or  as  legal  estates  vesting  under  the  Statute  of  Uses. 
They  are  created  by  providing  in  the  grant  of  the  first  estate 
that,  upon  a  breach  of  the  condition,  a  use  shall  spring  up  in  the 
second  grantee.  This  use,  when  it  arises,  is  executed  by  the 
Statute  annexing  the  seisin  to  the  use,  and  immediately  clothes 
the  second  grantee  with  the  entire  legal  estate  according  to  the 
terms  of  his  conditional  grant.  The  name  conditional  limitation, 
though  variously  used,  properly  applies  only  to  the  second  estate ;" 
the  first  estate,  considered  apart  from  the  second,  being  an  estate 
upon  condition  subsequent. 

Read:  2  Bl.  Com.,  p.  155; 

4  Kent  Com.,  Lect.  Ivii,  pp.  126-128; 
Washburn,  Real  Property,  §§  972,  973; 
Clark,  Elementary  Law,  §  202; 
Rice,  Real  Property,  §  230; 
Warvelle,  Real  Property,  pp.  115,  116; 
Boone,  Real  Property,  §  214. 

Article  V, 

OF   PRESENT   AND   FUTURE   ESTATES   IN   REAL  PROPERTY 

§  95.    Of  Estate  in  Possession  and  Estates  in  Expectancy. 

An  estate  in  real  property  may  be  created  either  to  take  effect 
at  once  in  ownership  and  possession,  or  its  possession  or  owner- 
ship or  both  may  be  postponed  until  a  future  day.  The  for- 
mer is  called  an  estate  in  possessio7i;   the  latter  is  known    as 


§  96  ESTATES   IN   REAL   PROPERTY  107 

an  estate  in  expectancy.  Anciently,  all  estates  —  the  life  estate 
of  the  freeman  and  the  estate  at  will  of  the  serf  —  were  estates 
in  possession ;  the  reversionary  interest  of  the  grantor  being  the 
only  semblance  of  a  future  estate.  Most  estates  are  of  this 
character  at  the  present  day,  and  in  the  very  nature  of  the  case 
there  must  be  at  all  times,  in  every  article  of  property,  at  least 
one  estate  which  is  an  estate  in  possession.  Estates  in  expectancy 
were  devised  to  meet  the  requirements  of  more  complex  con- 
ditions of  society,  in  which  both  instinct  and  interest  demanded 
that  provision  should  be  made  for  the  future  support  of 
families,  while  the  doctrine  of  seisin  restricted  the  power  to  do 
this  within  narrow  limits.  Of  such  estates  there  are  now  recog- 
nized by  law:  (1)  Reversions;  (2)  Remainders;  and  (3)  Execu- 
tory Estates. 

Rem.  An  estate  may  be  expectant  either  as  to  its  ownership 
or  as  to  its  enjoyment.  The  enjoyment  of  an  estate  consists  in 
the  actual  pernancy  of  the  profits,  or  the  receipt  of  the  rents  and 
other  advantages  arising  from  the  ownership  of  the  property. 
An  estate  of  any  kind  may  be  created  to  take  effect  hereafter  in 
enjoyment,  but  only  certain  species  of  estates  can  be  created  to 
take  effect  in  ownership  in  the  future.  An  estate  less  than  free- 
hold, for  instance,  may  be  granted  to  come  into  existence  in  the 
future  both  in  ownership  and  possession ;  as  also  may  an  equi- 
table estate  of  freehold,  or  even  a  legal  estate  of  freehold  if  it 
vests  by  virtue  of  the  Statute  of  Uses.  But  a  legal  estate  of  free- 
hold created  by  livery  of  seisin  or  its  equivalent  must  take  effect 
in  ownership,  either  actually  or  by  construction  of  law,  immedi- 
ately upon  the  act  of  livery,  though  its  enjoyment  may  be  post- 
poned till  after  the  cessation  of  some  intermediate  estate.  This 
is  a  consequence  of  the  nature  of  Hvery  of  seisin  which,  being  an 
instantaneous  act,  must  at  once  transmit  the  estate  to  the 
grantee. 

Read:  2  Bl.  Com.,  p.  163; 

Washburn,  Real  Property,  §  1508; 

Barbour,  Rijjhts  of  Persons  and  Property,  pp.  518-522; 

Andrews,  American  Law,  §  615; 

Clark,  Elementary  Law,  §  194; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  316-320. 

§  96.     Of  Estates  in  Reversion. 

An  estate  in  reversion  is  the  estate  which  remains  in  a  grantor 
after  he  has  granted  a  less  estate  than  his  own.     By  such  a 


108  ELEMENTARY   LAW  §  96 

grant  the  right  of  enjoyment  passes  to  the  grantee  and  resides 
in  him  during  the  existence  of  his  estate;  and  when  his  estate 
expires  this  right  reverts  or  returns  to  the  grantor.  As  to  its 
right  of  ovmership  the  grantor's  estate  continues  all  the  while 
in  him  unchanged.  Hence  the  estate  of  the  grantor  is  said 
to  be  in  reversion,  and  he  himself  is  called  the  reversioner. 
When  the  lesser  estate  determines  the  estate  of  the  grantor 
ceases  to  be  in  reversion,  and  its  enjoyment  is  again  united  with 
its  ownership. 


Rem.  While  his  estate  is  in  reversion  the  grantor  can  exercise 
no  dominion  over  the  property  which  is  inconsistent  with  the 
rights  embraced  in  the  lesser  estate.  Thus,  if  the  lesser  estate  is 
a  freehold  the  grantor  has  no  assertihle  seisin  and  cannot  convey 
the  property  by  any  act  which  requires  livery  of  seisin  or  its 
equivalent ;  but  he  may  transfer  his  reversionary  interest  by  an 
assignment,  or  may  create  new  uses  in  it,  and  may  protect  it 
from  waste  at  the  hands  either  of  the  grantee  or  of  strangers. 
If  the  lesser  estate  is  less  than  a  freehold,  the  seisin  remains  in 
the  grantor,  and  he  may  create  new  legal  estates  of  freehold  in 
the  property  subject  to  the  rights  of  the  owner  of  the  lesser 
estate.  When  the  holder  of  the  lesser  estate  is  under  an  obliga- 
tion to  pay  rent  to  the  grantor,  the  right  to  rent  is  said  to  be 
incident  to  the  reversion,  but  may  be  separated  from  it  by  the 
grantor  and  transferred  either  with  or  without  it  to  a  third  person. 
It  is  sometimes  stated  that  an  estate  in  reversion  ''arises  by  oper- 
ation of  latv" ;  that  it  is  an  "incorporeal  hereditament,"  etc. 
None  of  these  statements  are  correct.  The  estate  is  the  original 
estate  of  the  grantor,  shorn  temporarily  of  its  right  of  enjoyment, 
not  in  any  sense  a  new  estate ;  nor  is  the  character  of  the  property 
changed  from  corporeal  to  incorporeal. 

Read:  2  Bl.  Com.,  pp.  175-177; 

4  Kent,  Com.,  Lect.  Ixiii,  pp.  353-356; 

Washburn,  Real  Property,  §§  1509-1525; 

Barbour,  Rights  of  Persons  and  Property,  pp.  535-538; 

Walker,  American  Law,  §  145; 

Clark,  Elementary  Law,  §  196; 

Tiedeman,  Real  Property,  §§  385-389; 

Pingrey,  Real  Property,  §§  989-993; 

Rice,  Real  Property,  §§  251-258; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  321-325; 

Warvelle,  Real  Property,  pp.  95-97; 

Boone,  Real  Property,  §§  184-188; 

Tiffany,  Real  Property,  §§  113-115. 


^,^'^Qcl^  ^J 


§  97  ESTATES    IN   REAL   PROPERTY  109 

§  97.     Of  Estates  in  Remainder. 

An  estate  in  remainder  is  an  estate  which  is  so  created  as  to 
take  effect  in  ownership  or  possession  at  the  termination  of 
another  estate  which  is  created  by  the  same  grant.  A  remainder 
is,  in  itself,  the  whole  or  a  part  of  that  reversionary  interest 
which  would  legally  have  remained  in  the  grantor  after  he  had 
created  the  lesser  estate.  This  he  could  transfer  by  assignment 
after  the  lesser  estate  was  created.  But  if  the  lesser  estate  were 
a  freehold,  and  the  purpose  of  the  grantor  were  to  convey  another 
freehold  to  take  effect  after  the  first,  this  he  could  not  do  after 
the  creation  of  the  first  estate  because  his  own  seisin  had  now 
become  unassertible,  and  he  could  make  no  livery  of  seisin  to 
a  second  grantee.  Thus  in  order  to  create  one  freehold,  to 
come  into  existence  either  in  ownership  or  possession  after 
another,  it  was  necessary  to  create  them  both  by  the  same  grant 
and  to  make  one  act  of  livery  of  seisin  on  behalf  of  both  estates 
For  the  same  reason,  the  second  freehold  must  be  so  created  as 
to  take  effect  immediately  ujion  the  termination  of  the  first 
estate,  since  otherwise  the  seisin  of  the  grantor  would  revive 
under  his  reversionary  right,  and  could  not  then  be  severed  from 
it  without  another  grant  and  livery.  This  relation  of  the  first 
estate  to  the  second,  as  receiving  and  upholding  the  seisin  on  its 
behalf  until  the  time  arrives  when  its  owner  can  assert  his  own 
seisin,  has  given  to  the  first  estate  its  legal  character  as  not  only 
a  preceding  but  a  .mpporting  estate,  without  which  no  freehold 
remainder  can  be  created.  Any  number  of  freeholds  may 
thus  be  limited  to  take  effect  in  succession,  and  as  to  each  of 
*hese  all  those  which  j)recede  it  bear  the  relation  of  supporting 
estates.  Remainders  are  of  two  classes:  (1)  Vested  Remain- 
ders; and  (2)  Contingent  Remainders.  A  vested  remainder 
takes  effect  in  ownership  at  the  time  of  the  creation  of  the  pre- 
ceding estate,  and  in  possession  at  the  time  when  the  preceding 
estate  determines.  A  contingent  remainder  does  not  take  effect 
either  in  possession  or  in  ownership  at  the  time  of  the  creation 
of  the  preceding  estate,  and  should  the  j)receding  estate  expire 
before  the  occurrence  of  the  contingency,  on  which  the  remainder 
is  limited,  the  seisin  will  revive  in  the  grantor  and  the  remainder 
will  fail. 


110  ELEMENTARY   LAW  §  98 

Rem.  The  law  defining  and  governing  estates  in  remainder 
originated  and  developed  under  the  strict  doctrine  of  seisin,  as 
applied  to  freehold  legal  estates  so  granted  as  to  take  effect  at 
once  in  ownership  in  their  respective  grantees,  their  possession 
only  being  deferred  till  the  preceding  estates  expired.  To  such 
estates  all  the  fundamental  rules  governing  remainders  are  fully 
applicable.  When  similar  methods  came  to  be  employed  for  the 
creation  of  future  estates  less  than  freehold,  and  freehold  re- 
mainders and  remainders  less  than  freehold  were  alternated  in 
the  same  series  of  estates;  and  still  later,  when  attempts  were 
made  to  create  remainders  of  freehold  in  favor  of  persons  yet 
unborn,  or  not  now  capable  of  taking  ownership,  or  not  intended 
by  the  grantor  to  receive  the  estate  except  in  certain  contingen- 
cies, —  the  same  rules  were  applied  to  them  as  far  as  their  nature 
would  admit,  and  modifications  were  introduced  to  meet  their 
varying  conditions. 

Read:  2  Bl.  Com.,  pp.  164-168; 

4  Kent  Com.,  Lect.  lix,  pp.  197-202; 

Washburn,  Real  Property,  §§  1526-1540; 

Barbour,  Rights  of  Persons  and  Property,  pp.  523-526; 

Walker,  American  Law,  §  146; 

Clark,  Elementary  Law,  §  195; 

Tiedeman,  Real  Property,  §  396; 

Rice,  Real  Property,  §§  227-229,  238-244; 

Warvelle,  Real  Property,  pp.  92-95; 

Boone,  Real  Property,  §  172; 

Tiffany,  Real  Property,  §§  118,  119. 

§  98.     Of  Vested  Remainders. 

A  vested  remainder  is  a  remainder  so  created  that,  from  the 
commencement  to  the  close  of  the  preceding  estate,  its  seisin 
can  be  instantly  asserted  in  case  the  particular  estate  should 
be  determined.  Tliis  can  be  true  only  when  the  remainder  is 
limited  to  a  definite  person,  who  is  in  being  and  is  capable  of 
taking  at  the  time  of  the  grant.  Such  a  remainder  though 
vested  at  once  in  ownership  is  by  no  means  certain  ever  to 
become  vested  in  enjoyment.  Thus  while  a  grant  to  B  for 
life,  remainder  to  C  for  life,  both  being  living  persons,  creates 
a  vested  remainder  in  C  because  he  immediately  becomes  its 
owner;  yet  C  may  die  before  B  dies,  in  which  event  C's  re- 
mainder ceases  without  having  been  enjoyed.  "It  is  the  present 
capacity  of  taking  effect  in  possession  if  the  possession  were  to 
become  vacant,  and  not  the  certainty  that  the  possession  will  be- 
come vacant  before  the  estate  limited  in  remainder  determines" 


§  99  ESTATES   IN   REAL  PROPERTY  111 

which  characterizes  a  vested  remainder.  Vested  remainders, 
like  reversions,  can  be  assigned  by  their  owners  or  conveyed 
to  uses,  and  in  their  interest  the  property  will  be  protected  by 
the  law  from  permanent  injury  wliile  under  the  control  of  the 
particular  tenant. 

Rem.  A  vested  remainder  may  be  Hmited  to  take  effect  after 
a  particular  estate  for  years,  even  when  the  remainder  is  a  free- 
hold, for  the  delivery  of  possession  to  the  lessee  for  years  operates 
as  a  livery  of  seisin  of  the  freehold  to  its  grantee.  But  no  re- 
mainder can  be  limited  to  take  effect  after  a  fee  simple,  since  the 
grant  of  the  fee  simple  necessarily  exhausts  the  whole  estate. 
When  a  particular  estate  ceases  by  its  own  limitation  the  seisin 
or  possessory  right  of  the  remainder  becomes  assertible,  and  its 
owner  can  enter  and  enjoy  his  estate.  But  should  the  particular 
estate  expire  prematurely,  by  forfeiture  for  a  breach  of  condition 
subsequent,  the  benefit  of  the  forfeiture  would  enure  to  the 
grantor,  in  whom  the  seisin  would  then  revest  and  the  remainder 
would  fail.  The  hardship  of  this  rule  of  forfeiture  has  led  to  its 
modification  by  statute  in  some  of  our  American  States. 

Read:  2  Bl.  Com.,  pp.  166-168; 

4  Kent  Com.,  Lect.  lix,  pp.  202-206,  233-236; 

Washburn,  Real  Property,  §§  1541-1554; 

Barbour,  Rights  of  Persons  and  Property,  pp.  526-528; 

Clark,  Elementary  Law,  §  195; 

Tiedeman,  Real  Property,  §§  397-400; 

Pingrey,  Real  Property,  §§  994-1004; 

Rice,  Real  Property,  §  231; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  326-333; 

Boone,  Real  Property,  §  173; 

Tiffany,  Real  Property,  §§  120-122. 


§  99.     Of  Contingent  Remainders. 

A  contingent  remainder  is  a  remainder  so  created  that  the 
particular  estate  may  expire,  by  its  own  limitation,  before  the 
remainder  can  take  effect  in  ownership  or  possession.  This 
may  occur  in  four  cases:  (1)  Where  the  grantee  in  remainder, 
at  the  date  of  the  grant,  is  not  yet  in  being,  or  is  not  yet  ascer- 
tainable, or  is  not  yet  capable  of  taking  the  estate,  —  as  an 
estate  for  life  to  A  with  remainder  to  the  son  of  B  who  as  yet 
has  no  son,  or  to  the  eldest  surviving  son  of  B  or  to  any  son  of 
B  who  may  survive  him;  (2)  Where  the  remainder  is  granted 
to  take  effect  upon  the  happening  of  a  future  event  which  is 


112  ELEMENTARY   LAW  §  99 

sure  to  happen  at  some  time,  but  may  not  happen  until  after 
the  termination  of  the  particular  estate,  —  as  an  estate  to  A 
for  life  with  remainder  to  B  after  the  death  of  C,  for  though  C 
is  sure  to  die,  yet  if  he  outlives  A  the  remainder  fails ;  (3)  Where 
the  remainder  is  granted  to  take  effect  upon  a  contingency  which 
both  terminates  the  particular  estate  and  vests  the  remainder,  — 
as  an  estate  to  A  and  his  heirs  until  the  marriage  of  B  with 
remainder  to  B  and  his  heirs  forever,  an  estate  which  will  never 
cease  in  A  nor  vest  in  B  unless  B  marries;  (4)  Where  the 
remainder  is  granted  to  take  effect  upon  a  contingency  which 
has  no  relation  to  the  particular  estate,  —  as  an  estate  to  A  for 
life  with  remainder  to  B  upon  his  marriage  to  C,  the  duration 
of  A's  estate  not  being  affected  by  the  marriage  but  the  re- 
mainder vesting  in  ownership  when  that  event  occurs.  In 
these  four  cases  the  particular  estate  may  expire  and  the  seisin 
revert  to  the  grantor  before  the  remainder  can  take  effect,  and 
so  the  remainder  may  fail.  But  if  before,  or  on  the  instant  that, 
the  particular  estate  determines  the  contingent  event  occurs,  the 
remainder  will  vest  in  its  grantee,  its  contingent  character  will 
vanish  and  it  will  become  to  all  intents  a  vested  remainder. 
Pending  the  contingency  the  estate  in  remainder,  although  it 
cannot  vest  even  in  ownership  in  its  grantee,  nevertheless  exists 
and  'is  regarded  by  the  law  as  in  ahcyance,  —  its  seisin  mean- 
while being  represented  by  that  of  the  particular  estate.  Hence, 
when  the  grantee  of  a  contingent  remainder  is  a  person  in  being 
and  definitely  ascertainable,  he  may  assign  the  remainder  to 
another,  or  if  the  remainder  be  a  fee  it  will  descend  like  other 
inheritances,  actual  or  contingent,  to  his  heirs. 

Rem.  The  law  does  not  permit  remainders  to  be  limited  to  take 
effect  upon  (1)  the  performance  of  illegal  acts,  nor  (2)  upon  re- 
mote possibilities,  nor  (3)  upon  contingencies  which  abridge  the 
particular  estate.  Not  upon  illegal  acts,  because  no  one  can  be 
allowed  to  profit  by  his  own  wrong.  Not  upon  remote  possibili- 
ties, because  the  law  does  not  favor  the  tying  up  of  estates  upon 
contingencies  that  will  probably  never  occur.  Not  upon  con- 
tingencies which  abridge  the  particular  estate,  because  these  are 
breaches  of  condition  subsequent  and  result  in  a  return  of  the 
estate  into  the  grantor,  thereby  defeating  the  remainder.  The 
particular  estate  necessari/  to  support  a  freehold  contingent  re- 
mainder must  always  be  a  freehold,  otherwise  there  would  be 


§  100  ESTATES   IN   REAL   PROPERTY  113 

no  person  to  whom  livery  of  seisin  could  be  made  by  the  grantor. 
But  contingent  estates  less  than  freehold  can  be  limited  upon 
particular  estates  less  than  freehold,  since  the  seisin  always  re- 
mains in  the  grantor  as  reversioner. 

Read:  2  Bl.  Com.,  pp.  169-172; 

4  Kent  Com.,  Lect.  li.x,  pp.  206-214,  233-237,  248-262; 

Washburn,  Real  Property,  §§  1555-1600; 

Barbour,  Rights  of  Persons  and  Property,  pp.  528-531; 

Walker,  American  Law,  §  147; 

Clark,  Elementary  Law,  §  195; 

Tiedeman,  Real  Property,  §§  401^24; 

Pingrey,  Real  Property,  §§1005-1010; 

Rice,  Real  Property,  §§  45,  232-237; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  333-346; 

Boone,  Real  Property,  §§  173-179; 

Tiffany,  Real  Property,  §§  123-129. 


§  100.     Of  Executory  Estates. 

The  doctrine  of  remainders  properly  applies  only  to  legal 
estates,  but  where  equitable  estates  are  created  in  the  same 
manner  they  arc  governed  as  far  as  possible  by  the  same  rules. 
Thus  where  future  equitable  estates  are  created  to  take  effect 
after  preceding  and  supporting  estates  they  are  treated  as 
true  remainders.  But  where  they  are  limited  in  such  a  manner, 
that  they  could  not  be  remainders  if  they  were  legal  estates, 
they  can  be  sustained  only  by  applying  to  them  the  principles 
expressed  in  the  doctrine  of  uses  and  the  Statute  of  Uses,  which 
at  the  proper  time  executes  the  future  use  and  transforms  it 
into  a  legal  estate.  Such  estates  may  occur  in  five  cases:  (1) 
Where  an  e(iuital)le  estate  is  created  to  take  effect  in  the  future 
without  the  creation  of  any  preceding  estate;  (2)  Where  a 
future  equitable  estate  is  limited  to  take  effect  upon  a  con- 
tingency which  abridges  the  preceding  particular  estate;  (3) 
Where  a  future  ecjuitable  estate  is  limited  to  take  effect  at  a 
greater  or  less  interval  after  the  preceding  estate  has  determined ; 
(4)  Where  an  ecpiitable  estate  in  fee  is  limited  to  take  effect 
after  a  preceding  estate  in  fee;  (5)  Where  an  equitable  estate 
for  years  is  granted  to  one  person  for  life  or  in  fee  with  remainder 
over  to  another.  Neither  of  these  future  estates  can  be  a  re- 
mainder, for  the  first  hjvs  no  particular  estate;  the  second 
abriflges  the  particular  estate ;  the  third  is  not  supported  by  the 
particular  estate;    the  fourth   finds   nothing   to  operate  upon, 


114  ELEMENTARY   LAW  §  100 

since  the  preceding  fee  exhausts  the  grantor's  estate;  while  in 
the  fifth  the  estate  for  years  merges  in  the  estate  for  life  or  in 
fee  and  nothing  remains  to  vest  in  the  remainderman.  Such 
estates  are  therefore  valid  only  as  future  uses  to  be  executed  by 
the  Statute  as  they  arise,  until  which  time  they  remain  executory, 
and  hence  are  called  executory  estates.  These  estates  may  be 
created  by  will,  and  are  then  known  as  executory  devises; 
or  by  conveyances  to  uses,  when  they  are  called  shifting  or 
springing   uses. 

Rem.  An  executory  devise  is  a  future  equitable  estate  which  is 
created  by  a  will,  and  which  cannot  take  effect  as  a  remainder. 
Not  being  dependent  on  any  preceding  estate  it  cannot  be  de- 
feated while  a  seisin  exists  to  serve  the  use;  and  when  it  takes 
effect  it  will  be  executed  by  the  Statute  and  become  a  legal 
estate  unless  the  conditions  which  are  attached  to  it  by  the  will 
creating  it  determine  otherwise.  It  may  be  limited  either  as  a 
freehold  or  an  estate  for  years  and  with  or  without  preceding 
estates,  but  when  a  power  of  absolute  disposition  over  the  whole 
property  has  been  conferred  upon  one  devisee  no  further  devise 
of  it  can  be  made.  The  seisin  supporting  an  executory  devise  re- 
sides in  the  heirs  of  the  testator  if  no  other  lodgment  for  it  is  pro- 
vided by  the  will.  Conveyances  to  uses  are  deeds  or  covenants 
from  which  four  classes  of  uses  may  arise:  (1)  Contingent 
Uses;  (2)  Resulting  Uses;  (3)  Shifting  Uses;  (4)  Springing 
Uses.  A  contingeyit  use  is  an  equitable  estate  which  is  limited 
to  take  effect  as  a  contingent  remainder,  and  is  governed  by  the 
same  rules  as  other  remainders.  A  resulting  use  is  an  equitable 
estate  which,  for  some  reason,  cannot  vest  in  the  person  in  whose 
favor  it  was  created,  and  hence  remains  in  or  returns  to  its 
grantor.  A  shifting  use  is  an  equitable  estate  conferred  upon 
one  person  which,  upon  the  happening  of  some  future  event,  is 
to  shift  out  of  him  into  some  other  designated  person.  A  spri?ig- 
ing  use  is  an  equitable  estate  which  is  to  spring  up  as  a  new 
estate  at  some  future  time  in  some  person  other  than  the  grantor. 
For  these  estates  also  a  seisin  must  be  provided  somewhere  to 
serve  them,  on  failure  of  which  these  ecjuitable  estates  will  also 
fail.  The  contingencies  on  which  future  equitable  estates  shall 
arise  may  be  fixed  by  the  grantor  at  the  time  of  their  creation  or 
may  be  subsequently  determined  by  third  persons  as  his  agents 
acting  under  a  power  of  appointment,  —  as  when  a  man  devises 
property  to  the  use  of  his  wife  during  her  life,  and  after  her  death 
to  such  uses  as  she  by  her  last  will  may  appoint.  The  person 
to  whom  the  power  is  entrusted  is  called  the  donee  of  the  power; 
the  person  in  whose  favor  it  is  exercised  is  called  the  appointee. 


§  101  ESTATES   IN  REAL  PROPERTY  115 

Where  a  power  is  given  to  the  grantee  of  an  equitable  estate  to 
create  estates  out  of  his  own,  it  is  known  as  a  power  appendant 
or  appurtenant;  where  to  create  estates  after  his  own,  it  is  a 
collateral  power ;  where  the  donee  of  a  power  is  not  also  a  grantee, 
he  is  said  to  have  a  power  in  gross.  A  general  power  authorizes 
the  donee  to  appoint  whomsoever  he  will,  even  himself;  a  special 
power  designates  the  appointee.  A  permissive  power  enables  the 
donee  to  appoint  or  not,  at  his  pleasure ;  a  directory  power  com- 
mands him  to  appoint,  and  can  be  enforced  in  equity.  In  ex- 
ercising a  power  the  donee  must  follow  his  instructions,  and 
when  the  appointment  has  been  made  the  appointee  holds  his 
estate  from  the  original  grantor,  —  the  donor  of  the  power.  This 
doctrine  of  powers,  in  connection  with  that  of  remainders  and 
executory  estates,  would  enable  owners  of  real  property  to  con- 
trol its  sequestration  and  transmission  for  all  future  time  were 
it  not  for  certain  restrictions  which  the  courts  have  been  obliged 
to  impose  upon  it  in  the  interest  of  free  alienation,  and  which  are 
embodied  in  two  rules  known  as  "The  Rule  in  Shelley's  Case  " 
and  "The  Rule  against  Perpetuities." 

Read:  2  Bl.  Com.,  pp.  172-175,  334,  335; 

4  Kent  Com.,  Lect.  Ix.  pp.  264-287;    Lect.  Ixi,  pp.  289-301;    Lect. 

Ixii,  pp.  315-352; 
Washburn,  Real  Property,  §§  1617-1784; 

Barbour,  Rights  of  Persons  and  Property,  pp.  372-379,  531,  532; 
Walker,  American  Law,  §  148; 
Clark,  Elementary  Law,  §  197; 
Tiedeman,  Real  Property,  §§  478-577; 
Kerr,  Real  Property,  §§  1659-1872; 
Pingrey,  Real  Property,  §§  1020-1047,  1102-1125; 
Rice,  Real  Property,  §§  248,  249,  259-269; 
Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  346-350, 

370-390 ; 
Warvelle,  Real  Property,  pp.  125-128,  359,  360; 
Boone,  Real  Property,  §§  181-183,  189-201; 
Tiffany,  Real  Property,  §§  134-160,  273-294. 


§  101.     Of  the  Rule  in  Shelley's  Case. 

The  Rule  in  Shelley's  Case  provides  against  the  perpetuation 
of  estates  in  families  by  the  creation  of  a  series  of  remainders 
to  take  effect  in  successive  generations.  The  grant  of  an  estate 
to  A  for  life,  with  remainder  to  the  right  heir  of  A  for  life,  with 
remainder  to  the  right  heir  of  the  right  heir  of  A  for  life,  and 
so  on,  would  result  in  a  (hain  of  life  estates  clo.sely  resembling 
a  fee  tail,  and  e(|ually  removing  the  property  from  alienation. 
To  meet  this  evil  the  Rule  in  Shelley's  Case  prescribes  that  every 


116  ELEMENTARY   LAW  §  101 

estate  thus  limited  shall  vest  in  the  first  taker  as  a  fee  simple 
with  full  power  of  alienation,  and  that  if  he  retains  it  till  his 
death  his  heirs  shall  receive  it  from  him  by  inheritance  also 
with  full  powers  of  alienation,  and  not  as  remaindermen  under 
the  original  grant.  The  rule  as  formally  stated  is  this:  "When 
a  person  takes  an  estate  of  freehold,  legally  or  equitably,  under 
a  deed,  will,  or  other  writing,  and  in  the  same  instrument  there 
is  a  limitation  by  way  of  remainder,  either  with  or  without  the 
interposition  of  another  estate,  of  an  interest  of  the  same  legal 
or  equitable  quality  to  his  heirs  or  the  heirs  of  his  body  as  a 
class  of  persons  to  take  in  succession  from  generation  to  genera- 
tion, the  limitation  to  the  heirs  entitles  the  ancestor  to  the  whole 
estate,"  The  rule,  therefore,  does  not  apply  to  cases  where  the 
estate  given  to  the  first  taker  is  less  than  a  freehold,  or  where 
the  successive  estates  are  created  by  different  grants,  or  where 
some  of  the  estates  are  legal  and  others  equitable,  since  the 
rule  is  intended,  not  to  prevent  the  creation  of  distinct  estates 
by  separate  grants,  but  the  creation  of  one  perpetual  estate  by 
a  single  grant.  The  effect  of  the  rule  cannot  be  avoided  by 
interpolating  other  remainders  between  the  estates  limited  to 
the  first  taker  and  his  heirs,  for  the  fee  will  still  vest  in  the  first 
taker  and  he  can  convey  it  to  strangers  or  leave  it  to  descend  to 
his  heirs,  the  inheritance  opening  at  the  designated  time  to  let 
in  these  extraneous  remainders  and  closing  again  when  they 
have  expired. 

Rem.  This  rule  receives  its  name  because  it  was  first  elabo- 
rately discussed  and  explained  in  Shelley's  case  (1  Coke,  88), 
and  was  there  stated  as  follows:  "that  when  the  ancestor,  hy 
any  gift  or  conveyance  taketh  an  estate  of  freehold,  and  in  the 
same  gift  or  conveyance  an  estate  is  limited,  either  mediately  ot 
immediately,  to  his  heirs  in  fee  or  in  tail,  the  '  heii's  '  are  words  of 
limitation  of  the  estate  and  not  words  of  purchase."  The  sub- 
stance of  the  rule,  however,  is  much  older  than  Shelley's  case 
and  has  been  recognized  and  enforced  at  least  since  A.  d.  1325, 
or  about  a  generation  after  the  passage  of  the  Statute  Quia 
Emptores,  by  which  the  free  alienation  of  lands  granted  in  fee 
simple  was  first  secured.  No  doubt  the  Rule  in  Shelley's  Case 
often  contradicts  the  intention  of  the  grantor  or  testator  and 
defeats  his  purpose,  but  it  is  still  accepted  in  many  of  our  States 
as  part  of  their  common  law,  while  in  others  it  has  been  repudi- 
ated by  their  courts,  or  repealed  by  statute. 


§  102  ESTATES   IN   REAL  PROPERTY  117 

Read:  2  Bl.  Com.,  p.  242; 

4  Kent  Com.,  Lect.  lix,  pp.  214-233; 

Washburn,  Real  Property,  §§  1601-1616; 

Tiedeman,  Real  Property,  §§  433,  434; 

Pingrey,  Real  Property,  §§  1011-1019; 

Jones,  Real  Property,  §§  601-610; 

Rice,  Real  Property,  §  247; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  350-357; 

Warvelle,  Real  Property,  pp.  267-271; 

Boone,  Real  Property,  §§  180-180  b; 

Tiffany,  Real  Property,  §§  130-133. 


§  102.     Of  the  Rule  against  Perpetuities. 

The  Rule  against  Perpetuities  j)rovi(lcs  against  the  postpone- 
ment of  the  commencement  of  a  future  estate  beyond  a  jjcriod 
measured  by  the  Ufetime  of  some  person  in  being  at  the  date 
of  the  grant,  and  twenty-one  years  and  ten  months  afterwards. 
The  object  of  the  rule  is  to  prevent  the  tying  up  of  property  to 
await  the  rise  of  remote  estates,  and  compel  its  return  into  a 
legal  condition  where  new  estates  in  fee  simple  can  be  created 
in  it.  Any  estate,  therefore,  which  by  the  terms  of  the  grant  or 
devise  is  not  certain  to  take  effect  within  the  period  named  is 
void.  The  duration  of  the  period  is  so  fixed  as  to  enable  grantors 
and  testators  to  confer  estates  upon  the  unborn  children  of  living 
persons,  and  have  them  take  effect  upon  the  arrival  of  such 
children  at  the  age  of  twenty-one  years,  when  for  the  first  time 
they  would  be  legally  capable  of  conveying  or  devising  them. 
The  number  of  years  which  may  actually  intervene  between 
the  creation  of  the  estate  and  the  majority  of  the  now  unborn 
grantee  or  devisee  does  not  enter  into  the  contemplation  of  the 
rule,  but  may  be  few  or  many  as  the  course  of  events  determines. 

Rem.  The  Rule  against  Perpetuities  does  not  apply  to  public 
enterprises  nor  to  charitable  trusts,  nor  to  the  duration  of  estates 
already  created.  All  existing  estates  are  alienable  in  some  form 
or  to  some  person,  and  all  conditions  annexed  to  estates  by 
which  their  alienation  is  entirely  prohibited  are  void. 

Read:  2  HI.  Com.,  pp.  17.3-175; 

4  Kent  Com.,  Lect.  liv,  p.  17;  Lect.  Ix,  pp.  264-272; 

Washburn,  Real  Property,  §§  1785-1821,  and  note; 

Andrews,  American  I.aw,  §  825; 

Rice,  Real  Property,  §§  270-276; 

Kirciiwey,  Readings  on  the  Law  of  Real  Property,  pp.  391-396; 

Tiffany,  Real  Property,  §  500. 


118  ELEMENTARY  LAW  §§  103,  104 

Article  VI 

OF    JOINT    AND    SEVERAL    ESTATES    IN    REAL    PROPERTY 

§  103.     Of  the  Number  and  Connexion  of  the  Tenants  of  Estates 
in  Real  Property. 

A  single  estate  in  real  property  may  belong  to  one  person  alone, 
or  to  several  persons  jointly  as  one  tenant.  Several  concurrent 
estates  may  coexist  in  the  same  article  of  property,  and  each 
of  these  estates  may  be  owned  by  one  individual  or  a  group  of 
individuals.  A  number  of  distinct  estates  may  also  subsist  in 
one  article  of  property  at  the  same  time,  and  still  the  possession 
and  enjoyment  of  the  article  may  continue  undivided  in  the 
collective  owners  of  all  these  estates.  With  reference  to  this 
attribute  of  estates  in  real  property  they  are  distinguished  into 
six  classes:  (1)  Estates  in  Severalty;  (2)  Estates  in  Joint 
Tenancy;  (3)  Estates  in  Entirety;  (4)  Estates  in  Copar- 
cenary ;   (5)  Estates  in  Common ;    (6)  Estates  in  Partnership. 

Rem.  These  six  classes  by  no  means  exhaust  the  possible  com- 
binations in  which  estates  and  their  tenants  could  be  arranged. 
Such  combinations  appear  and  disappear  with  the  requirements 
of  commerce  and  society.  Two  of  these  six  are  comparatively 
modern.  Two  are  very  old  and  are  now  faUing  into  disuse. 
Others  will  be  devised  and  recognized  by  law  as  the  necessity 
for  them  arises. 

Read:  Tiedeman,  Real  Property,  §  235; 
Tiffany,  Real  Property,  §  161. 

§  104.     Of  Estates  in  Severalty. 

An  estate  in  severalty  is  an  estate  all  of  whose  rights  of  owner- 
ship and  possession  are  vested  in  a  single  individual.  This 
definition  distinguishes  estates  in  severalty  from  estates  belonging 
to  two  or  more  owners,  and  from  estates  which,  though  separate 
in  ownership  from  all  other  estates  in  the  same  property,  are 
united  with  them  in  the  right  of  possession.  The  owner  of  an 
estate  in  severalty  has  entire  dominion  over  the  estate,  and  if 
his  right  of  possession  is  immediate  also  he  has  the  exclusive 
enjoyment  of  the  article  of  property. 

Rem:  Most  estates  in  real  property  are  estates  in  severalty, 
and  all  are  presumed  to  be  so  unless  the  contrary  is  indicated  by 
the  terms  of  the  grant  or  by  implication  of  law. 


§  105  ESTATES   IN  REAL  PROPERTY  119 

Read:  2  Bl.  Com.,  p.  179; 

Barbour,  Rights  of  Persons  and  Property,  pp.  539,  540; 

Walker,  American  Law,  §  149; 

Andrews,  American  Law,  §  618; 

Kerr,  Real  Property,  §§  1906-1908; 

Warvelle,  Real  Property,  p.  97; 

Boone,  Real  Property,  §  348. 


§  105.     Of  Estates  in  Joint  Tenancy. 

An  estate  in  joint  tenancy  is  an  estate  so  created  as  to  vest, 
both  in  ownership  and  in  possession,  in  several  persons  as  one 
tenant.  It  is  characterized  by  four  unities:  (1)  Unity  of  Estate, 
because  there  is  but  one  estate  and  one  tenant;  (2)  Unity  of 
Title,  because  the  one  estate  is  created,  in  favor  of  all  the  per- 
sons who  compose  the  one  tenant,  by  the  same  grant;  (3) 
Unity  of  Time,  because  the  estate  vests  in  all  the  persons,  who 
compose  the  tenant,  at  the  same  instant;  (4)  Unity  of  Possession, 
because  the  same  right  of  possession  inheres  concurrently  in 
all  the  persons  who  compose  the  tenant.  Out  of  the  unity  of 
estate  grows  the  right  of  survivorship,  because  when  one  of  the 
persons,  who  hold  the  estate  as  one  tenant,  drops  out  of  the 
group  by  death  or  otherwise,  the  one  tenant  and  the  one  estate 
remain  in  the  survivors,  and  when  all  but  one  have  disappeared 
reside  in  him  as  sole  survivor.  As  a  consequence  also  of  these 
unities  the  enjoyment  of  the  property  by  one  of  the  joint  tenants 
is  the  enjoyment  of  all ;  any  act  of  one  benefiting  the  property 
enures  to  the  advantage  of  all ;  none  of  them  can  sue  or  be  sued 
alone  in  respect  to  the  joint  property;  and  neither  can  convey 
the  property  without  the  concurrence  of  all.  As  a  consequence 
of  the  right  of  survivorship  the  estate  is  not  subject  to  dower  or 
curtesy,  nor  can  it  be  devised,  until  it  has  become  an  estate  in 
severalty.  Freehold  joint  tenants  are  said  to  be  seised  per  my 
et  per  tout,  —  that  is,  by  the  share  and  by  the  whole,  because 
each  has  the  seisin  both  of  his  undivided  share  and  of  the  whole 
estate. 

Rem.  An  estate  in  joint  tenancy,  like  so  many  other  estates 
which  originated  antl  flourished  in  the  earlier  periods  of  our  law, 
was  devised  for  the  purpose  of  tying  up  property  in  families, 
securing  its  ultimate  enjoyment  to  persons  more  or  less  remote, 
and  preventing  its  alienation  in  fee  simple  for  long  periods  of 


120  ELEMENTARY   LAW  §  106 

time.  As  such  it  eventually  incurred  the  law's  disfavor  and  was 
gradually  changed  in  many  of  its  attributes,  until  by  recognizing 
the  right  of  each  person  in  the  tenancy  to  separate  his  share  from 
the  rest  and  convey  it  to  a  stranger,  and  the  right  of  all  the  persons 
by  common  consent  to  divide  the  property  among  themselves, 
the  law  permitted  the  unity  of  the  estate  and  the  right  of  survivor- 
ship to  be  defeated  by  the  owners  at  their  pleasure.  Shorn  of  these 
qualities  this  estate  lost  much  of  its  importance,  and  though  it 
can  still  be  created  it  requires  express  and  unequivocal  language 
in  the  grant  or  will ;  and  when  created  it  can  be  destroyed  and 
changed  into  an  estate  in  severalty,  or  an  estate  in  common,  at 
any  time  by  the  act  of  the  grantees.  As  long  as  they  permit  it  to 
continue  as  a  joint  estate,  however,  it  will  follow  the  course  es- 
tablished by  the  ancient  rule. 

Read:  2  Bl.  Com.,  pp.  180-187; 

4  Kent  Com.,  Lect.  Ixiv,  pp.  357-366; 

Washburn,  Real  Property,  §§  851-869; 

Barbour,  Rights  of  Persons  and  Property,  pp.  540-545; 

Walker,  American  Law,  §  149; 

Andrews,  American  Law,  §  618; 

Clark,  Elementary  Law,  §  201 ; 

Tiedeman,  Real  Property,  §§  236-238; 

Kerr,  Real  Property,  §§  1909-1945; 

Pingrey,  Real  Property,  §§  660-669; 

Jones,  Real  Property,  §§  1770-1789; 

Rice,  Real  Property,  §§  418-422; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  179-185; 

Warvelle,  Real  Property,  pp.  97-99; 

Boone,  Real  Property,  §§  349-355; 

Tiffany,  Real  Property,  §  162. 

§  106.     Of  Estates  in  Entirety. 

An  estate  in  entirety  is  an  estate  granted  to  a  husband  and 
wife  to  hold  jointly.  In  many  respects  it  resembles  an  estate 
in  joint  tenancy,  but  differs  from  it  in  this,  —  that  as  the  husband 
and  wife  are  one  person  in  law,  and  consequently  cannot  be 
contemplated  as  owning  separate  shares,  the  seisin  is  per  tout 
and  not  per  my,  by  the  whole  and  not  by  the  share.  During 
their  joint  lives,  however,  the  estate  is  one  and  indivisible  except 
by  the  act  of  both,  and  unless  aliened  or  devised  by  mutual 
consent  vests  in  the  survivor  at  the  death  of  the  other  party. 
If  under  the  local  laws  the  husband  has  the  control  of  the  wife's 
realty  during  coverture,  the  estate  in  entirety  resides  in  him 
and  he  may  use  or  alien  or  lease  it  for  his  own  lifetime,  or  his 
life  estate  in  it  can  be  taken  on  execution  by  his  creditors. 


§  107  ESTATES   IN   REAL   PROPERTY  121 

Rem.  In  several  of  our  American  States  an  estate  by  entirety 
is  unknown,  and  any  joint  estate  in  a  husband  and  wife  is  re- 
garded as  an  estate  in  common.  In  other  States,  while  this  estate 
is  recognized,  its  details  are  regulated  by  local  statutes. 

Read:  4  Kent  Com.,  Lect.  Ixiv,  pp.  .362.  36.3; 

Washburn,  Real  Property,  §§  520-539,  and  note,  911-916; 

Clark,  Elementary  Law,  §  201 ; 

Tiedeman,  Real  Property,  §§  242-244; 

Kerr,  Real  Property,  §§  1968-1991; 

Pingrey,  Real  Property,  §§  701-706; 

Jones,  Real  Property,  §§  1790-1817; 

Rice,  Real  Property,  §§  435-445; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  196-198; 

Warvelle,  Real  Property,  pp.  99-102; 

Boone,  Real  Property,  §  366; 

TiPfany,  Real  Property,  §§  165,  166. 


§  107.     Of  Estates  in  Coparcenary. 

An  estate  in  roparccnary  is  an  estate  in  fee  which,  at  the  death 
of  its  former  owner,  has  descended  to  two  or  more  persons  as 
his  heirs  at  law.  In  some  particulars  this  estate  resembles  a 
joint  tenancy,  and  in  others  an  estate  in  common.  The  estate, 
as  it  descends,  is  one  estate,  and  all  the  heirs  taken  together 
receive  it  as  one  tenant.  Hence  they  are  said  to  be  seised  fer 
my  et  per  tout;  and  yet  each  is  the  owner  of  the  whole  of  a 
distinct  share  which  he  can  alien  or  devise,  and  which  at  his 
death  will  descend  to  his  heirs.  There  is  no  right  of  survivor- 
ship, and  the  parties  may  at  any  time  divide  the  property  among 
themselves,  or  either  of  them  may  procure  its  partition  by  the 
courts. 

Rem.  This  estate  was  a  very  important  one  under  the  English 
law,  and  usually  arose  whenever  an  estate  descended  to  female 
heirs,  or  in  cases  where  the  rule  of  primogeniture  could  not  be 
applieij.  In  this  country  it  exists  in  several  of  our  States;  in 
others,  groups  of  heirs  take  by  descent  as  tenants  in  common. 

Read:  2  Bl.  Com.,  pp.  187-191; 

4  Kent  Com.,  Ix>ct.  Ixiv,  pp.  366,  367; 

Wasliburn,  Real  Property,  g§  870-875; 

Tiedeman,  Real  Property,  §  241; 

Kerr,  Real  Property,  §§  1964-1967; 

Pingrey,  Real  Pr()|)(>rty,  §ij  670,  671; 

Rice,  Real  Properly,  §  423; 

Kirchwey,  Readings  on  tlie  Law  of  Real  Property,  pp.  192-195; 


122  ELEMENTARY   LAW  §  108 

Warvelle,  Real  Property,  pp.  104,  105; 
Boone,  Real  Property,  §  356; 
Tiffany,  Real  Property,  §  164. 


§  108.     Of  Estates  in  Common. 

An  estate  in  common  is  an  estate  in  an  undivided  share  of 
some  article  of  property,  the  possession  of  which  resides  in  its 
owner  in  common  with  the  owners  of  the  estates  in  the  other 
undivided  shares.  Any  number  of  such  estates  may  coexist 
in  any  article  of  property,  and  the  shares  may  be  equal  or  un- 
equal; but  each  share  vests  in  its  owner  separately  from  every 
other  share,  and  may  be  conveyed  by  him  without  reference 
to  the  other  shares.  In  making  such  conveyance,  however,  he 
must  describe  his  estate  as  an  undivided  share  of  the  whole 
property  and  not  as  a  specific  part  of  it,  since  as  long  as  the 
possession  remains  in  common  none  of  the  owners  has  an 
exclusive  right  to  any  particular  portion  of  the  property.  The 
seisin  of  freehold  tenants  in  common  is  said  to  be  'per  my  and 
not  per  totit,  —  by  the  share  and  not  by  the  whole,  —  and  while 
this  continues  neither  of  them  can  do  any  act  which  prejudices 
the  seisin  or  estates  of  his  co-tenants.  Estates  in  common  may 
be  created  by  grant  or  devise  or  descent,  or  by  the  destruction 
of  any  of  the  unities  of  estates  in  joint  tenancy,  entirety,  or 
coparcenary,  except  the  unity  of  possession.  Of  contemporane- 
ous estates  in  common  some  may  have  arisen  by  deed,  others 
by  inheritance,  others  by  will,  and  at  as  many  different  dates 
as  there  are  different  estates. 

Rem.  Estates  in  common  are  the  most  simple  and  flexible  of 
all  joint  estates,  and  on  that  account  are  more  favored  in  the  law 
than  any  others.  Whenever  it  is  doubtful  to  which  class  of  co- 
tenancies an  estate  belongs  the  courts  construe  it  to  be  an  estate 
in  common. 

Read:  2  Bl.  Com.,  pp.  191-194; 

4  Kent  Com.,  Lect.  Ixiv,  pp.  367-369; 

Washburn,  Real  Property,  §§  876-881; 

Barbour,  Rights  of  Persons  and  Prope'rty,  pp.  545-549; 

Walker,  American  Law,  §  150; 

Andrews,  American  Law,  §  618; 

Clark,  Elementary  Law,  §  201; 

Tiedeman,  Real  Property,  §§  239,  240; 

Kerr,  Real  Property,  §§  1946-1963; 


§  109  ESTATES   IN   REAL   PROPERTY  123 

Pingrey,  Real  Property,  §§  672-700; 

Jones,  Real  Property,  §§  1818-1825; 

Rice,  Real  Property,  §§  406-414; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  186-191; 

Warvelle,  Real  Property,  pp.  102,  103; 

Boone,  Real  Property,  §§  357-363; 

Tiffany,  Real  Property,  §  163. 


..X 


§  109.     Of  Estates  in  Partnership. 

An  estate  in  partnership  is  an  estate  purchased  by  a  partner- 
ship with  partnership  funds,  and  held  for  partnership  purposes. 
This  estate  has  a  dual  aspect.  As  between  its  owners  it  is  an 
estate  in  joint  tenancy  or  in  common,  as  the  grant  may  deter- 
mine. But  as  between  the  partnership  and  its  creditors  it  is  a 
fund  for  the  payment  of  debts,  and  is  treated  in  equity  as  money 
and  not  as  land.  Until  these  debts  are  paid  the  property  cannot 
be  taken  by  creditors  of  the  owners  as  individuals,  nor  descend 
to  their  heirs,  nor  be  subject  to  dower  or  curtesy.  On  the  death 
of  either  of  the  partners  it  sur\ives  to  the  others,  and  remains 
in  them  till  the  partnership  obligations  are  satisfied.  Then  it 
resumes  the  usual  course  of  other  joint  estates.  An  estate  may 
be  an  estate  in  partnership,  though  the  property  were  pur- 
chased by  one  of  the  partners  in  his  own  name,  provided  that 
the  circumstances  and  intention  of  the  purchase  make  it,  in  law, 
an  asset  of  the  partnership.  In  that  case  it  resides  in  the  nom- 
inal purchaser  as  trustee  for  the  firm,  and  also  for  its  creditors 
so  far  as  the  satisfaction  of  their  claims  requires. 

Rem.  Estates  do  not  become  estates  in  partnership  from  the 
mere  fact  that  they  are  owned  by  two  or  more  partners,  or  that 
they  were  paid  for  out  of  partnership  funds;  for  this  may  be 
their  method  of  dividing  and  investing  the  profits  of  their  busi- 
ness, and  will  then  make  them  tenants  in  common  or  joint  tenants 
only.  It  is  when  the  estate  is  acquired  for  partnership  purposes, 
as  a  part  of  the  assets  of  the  business  in  which  the  partnership  is 
engaged,  and  becomes  the  basis  of  j)artnership  credit,  that  this 
peculiar  character  attaches  to  it  which  distinguishes  it  from  other 
classes  of  joint  estates. 

Read:  Wasliburn,  Real  Property,  §§  897-906; 
Andrews,  American  Law,  §  618; 
Tiedeman.  Real  Property,  §J  245,  246; 
Kerr,  Real  Propt-rty.  §§  l<)i)2- 191)9; 
Pingrey,  R(>al  Property.  S§  7U7-713; 


124  ELEMENTARY   LAW  §  110 

Jones,  Real  Property,  §§  1826-1834; 
Rice,  Real  Property,  §§  415,  416; 
Warvelle,  Real  Property,  pp.  103,  104; 
Boone,  Real  Property,  §  364; 
Tiffany,  Real  Property,  §  167. 


1  110.     Of  the  Reciprocal  Rights  and  Duties  of  Co-tenants. 

All  joint  estates  include  at  least  one  unity,  —  the  unity  of 
possession;  and  therefore  the  possession  of  one  owner  is  the 
possession  of  all,  and  never  can  become  adverse  to  the  others 
until  by  some  open  act  or  declaration  the  actual  possessor 
repudiates  the  title  of  the  rest.  Where  all  or  several  occupy  the 
property,  each  is  in  possession  of  the  whole  unless  they  make 
some  different  arrangement  by  agreement  among  themselves. 
Those  who  occupy  the  property  are  entitled  to  use  it  for  their 
personal  benefit  without  accountability  to  the  others,  but  if 
they  underlet  it  or  sell  its  products  and  receive  a  profit  the  others 
have  a  right  to  their  proportionate  share.  A  duty  rests  upon 
all  co-tenants  to  keep  the  common  property  in  suitable  repair, 
and  equity  will  enforce  this  duty  at  the  request  of  any  of  the 
owners,  but  none  can  be  compelled  to  contribute  to  improvements 
which  he  has  not  authorized,  even  tiiough  he  should  participate 
in  their  enjoyment.  In  suits  regarding  the  possession  all  the 
co-tenants  must  be  joined  either  as  plaintiffs  or  defendants. 

Rem.  Reciprocal  rights  of  co-tenants  do  not  extend  beyond 
the  unities  which  characterize  their  joint  estate.  Thus  where  the 
estates  are  several  and  the  possession  is  joint,  as  in  estates  in  com- 
mon, each  of  the  tenants  is,  in  reference  to  all  rights  of  oumership, 
an  independent  individual,  and  must  sue  or  be  sued  alone,  and 
stands  unaffected  by  any  acts  or  defaults  of  the  others.  But  where 
the  ownership  of  the  estate  is  joint,  as  in  a  true  joint  tenancy  and 
others  which  resemble  it,  they  must  act  jointly  in  asserting  or  de- 
fending their  rights,  and  any  conduct  of  one  which  fortifies  the 
title  to  the  estate,  as  by  the  purchase  of  adverse  claims  or  the  ex- 
tinguishment of  incumbrances,  operates  to  the  advantage  of  all 
if  they  elect  to  pay  their  share  of  the  expense. 

Read:  4  Kent  Com.,  Lect.  Ixiv,  pp.  368-371; 
Washburn,  Real  Property,  §§  882-896; 
Tiedeman,  Real  Property,  §§  251-255; 
Kerr,  Real  Property,  §§  2000-2007; 
Jones,  Real  Property,  sS^  1835-1938; 
Tiffany,  Real  Property,  h^  168-173. 


§  111  ESTATES   IN   REAL   PROPERTY  125 

§  111.     Of  the  Partition  of  Joint  Estates. 

Joint  estates  matj  be  dlvulcd:  (1)  13y  the  voluntary  act  of  all 
the  owners;  (2)  By  suit  at  law;  (3)  By  proceedings  in  equity; 
(4)  By  order  of  a  court  of  probate.  A  voluntnn/  'partition  may 
be  made  by  mutual  deeds  of  release,  and  in  some  cases  by  a 
verbal  agreement  followed  by  actual  occupation  of  the  divided 
shares.  Any  owner  having  an  immediate  right  of  seisin  or 
possession  may  mie  the  others  in  a  court  of  law  for  the  di\'ision 
of  the  property,  and  if  his  title  is  found  to  be  impregnable,  and 
the  property  is  apartible,  the  court  will  order  its  division  among 
the  several  owners  in  proj)()rtion  to  their  respective  shares. 
Where  the  property  is  not  apartible  recourse  may  be  had  to  a 
court  of  equity,  which,  on  finding  that  the  right  to  a  division 
exists,  can  make  it  either  by  selling  the  property  and  distributing 
the  proceeds,  or  by  apportioning  its  income  or  its  practical  use, 
or  by  any  other  method  which  will  secure  the  interests  of  all  the 
owners.  Partition  in  probate  courts  takes  place  in  connection 
with  the  settlement  of  decedents'  estates,  and  awards  their 
proper  shares  of  the  })ro])erty  to  the  heirs  or  distributees,  unless 
a  will  otherwise  provides.  Where  the  property  is  itself  divided 
by  legal  proceedings  any  co-owner,  who  may  have  improved 
any  portion  of  the  common  property,  will  receive  that  portion 
as  his  share,  if  no  prejudice  is  thereby  done  to  the  others;  but 
he  has  no  claim  thereto  against  their  interests.  A  partition  by 
the  courts,  once  made,  can  be  revised  and  corrected  should  it 
subsequently  appear  that  the  title  to  any  portion  of  the  divided 
property  was  invalid,  or  that  distribution  had  been  made  to 
some  one  who  had  no  right  to  a  share.  A  partition  by  mutual 
agreement,  in  the  absence  of  fraud,  is  final. 

Rem.  Under  the  earlier  law  no  joint  estates,  except  the  estate 
in  coparcenary,  could  be  divided,  but  all  must  be  held  according 
to  the  terms  of  their  creation.  In  A.  D.  1540-41,  however,  au- 
thority was  given  to  the  courts  of  common  law  to  make  partitions, 
and  soon  after  that  time  e(iuity  began  to  act  uj)on  those  cases 
which  were  beyond  the  sphere  of  the  courts  of  law.  In  our  own 
States  at  present  the  subject  is  governed,  to  a  considerable  ex- 
tent, by  local  statutes.  'The  partition  of  a  joint  estate  creates  no 
new  estates,  but  merely  gives  the  old  estates  or  interests  a  definite 
boundary ;  nor  does  it  affect  claims  upon  the  property  as  a  whole, 
such  as  thos(>  of  mortgagees  or  the  owners  of  incorporeal  heredita- 
ments therein. 


126  ELEMENTARY  LAW  §  112 

Read:  2  Bl.  Com.,  p.  194; 

4  Kent  Com.,  Lect.  Ixiv,  pp.  364-366,  369; 
Washburn,  Real  Property,  §§  917-934; 
Tiedeman,  Real  Property,  §§  259-265; 
Kerr,  Real  Property,  §§  2008-2029; 
Pingrey,  Real  Property,  §§  714-735; 
Jones,  Real  Property,  §§  1939-2000; 
Rice,  Real  Property,  §  417; 
Warvelle,  Real  Property,  pp.  105,  106; 
Boone,  Real  Property,  §§  367-371  a,  535-561; 
Tiffany,  Real  Property,  §§  174,  175. 


Article  VII 

OF  THE  TITLE  TO  ESTATES  IN  REAL  PROPERTY 

112.     Of  Title. 

Title  is  the  means  whereby  an  estate  is  acquired ;  that  is,  the 
mode  of  its  original  creation,  or  of  its  transfer  from  one  person 
to  another.  Title  to  estates  in  real  property  is  governed  by  the 
lex  rei  sites,  or  law  of  the  State  where  the  property  is  situated, 
and  all  questions  as  to  the  validity  and  effect  of  the  modes 
adopted  for  its  creation  and  transfer  are  determined  by  that 
law.  Title  is  of  two  classes:  (1)  Title  by  Descent;  and  (2) 
Title  by  Purchase.  Title  by  descent  is  the  means  by  which  the 
heir  at  law  acquires  the  estate  upon  the  death  of  the  ancestor. 
Title  by  purchase  includes  every  other  form  by  which  estates 
can  be  created  or  transferred. 

Rem.  Title  by  descent  arises  by  operation  of  law,  and  simply 
transmits  an  existing  estate  of  inheritance  with  all  its  incidental 
rights  and  obligations  to  a  person  whom  the  law  designates  as 
the  heir.  Title  by  purchase  arises  either  by  operation  of  law,  or 
by  the  act  of  the  present  owner,  or  by  the  concurrent  act  of  the 
present  and  a  former  owner;  and  may  create  a  new  estate,  or 
transfer  an  old  estate  with  or  without  ij;s  prior  incidents.  In 
estates  of  inheritance  a  purchaser  becomes  the  new  stock  from 
which  the  descent  of  future  heirs  is  traced  until  superseded  by 
another  purchaser. 

Read:  2  Bl.  Com.,  pp.  195-201; 

4  Kent  Com.,  Lect.  Ixv,  pp.  373,  374; 

Washburn,  Real  Property,  §§  1822-1824; 

Barbour,  Rights  of  Persons  and  Property,  pp.  552,  553; 

Andrews,  American  Law,  §  619. 

Clark,  Elementary  Law,  §  204; 


§113  TITLE  TO  REAL  PROPERTY  127 

Tiedeman,  Real  Property,  §§  659-664; 

Kerr,  Real  Property,  §§  2254-2256; 

Rice,  Real  Property,  §  30; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  412—416; 

Warvelle,  Real  Property,  pp.  130,  131,  141,  142; 

Boone,  Real  Property,  §§  246,  247. 


§  113.     Of  Title  by  Descent. 

The  primary  test  by  which  the  law  designates  the  person  to 
whom  an  estate  shall  descend  is  his  consanguinity,  or  blood 
relationship  to  the  deceased  owner.  Consanguinity  is  the  tie 
which  unites  persons  who  are  descended  from  the  same  stock, 
or  common  ancestor.  It  is  of  two  kinds:  (1)  Lineal;  and 
(2)  Collateral.  Lineal  cansanguinify  is  the  relationship  between 
persons  one  of  whom  is  descended  in  a  direct  line  from  the  other. 
Collateral  consanguinity  is  the  relationship  of  persons  who  are 
descended  from  the  same  stock,  but  not  one  from  the  other. 
Degrees  of  lineal  consanguinity  are  reckoned  by  counting  the 
generations  from  the  ancestor  to  the  heir.  Degrees  of  collateral 
consanguinity  are  computed  either  by  counting  downward  from 
the  common  ancestor  to  the  most  remote  of  the  compared 
descendants,  or  by  counting  upward  from  one  of  them  to  the 
common  ancestor  and  then  downward  to  the  other.  By  the 
first  method  cousins  are  related  in  the  second  degree ;  by 
the  latter  method,  in  the  fourth  degree.  A  further  distinction 
is  made  between  kindred  of  the  whole  blood  and  kindred  of 
the  half  blood.  Kindred  of  the  whole  blood  are  descended  from 
the  common  ancestor  by  the  same  wife  or  husband.  Khuired 
of  the  half  blood  are  descended  from  the  same  common  ancestor, 
but  by  different  marriages.  The  feudal  rules  of  descent,  based 
on  this  doctrine  of  consanguinity,  formed  an  elaborate  and  sym- 
metrical body  of  law  which  has  long  since  given  way,  on  both 
sides  of  the  Atlantic,  to  methods  better  suited  to  modern  con- 
ditions of  family  and  social  life.  In  this  country  the  whole 
subject  is  mostly  regulated  by  local  statutes  which,  in  our 
different  States,   are   widely   variant   from   one   another. 

Rem.  Notwithstanding  the  variations  in  our  local  laws  of 
inheritance  they  possess  certain  common  principles,  such  as  (1) 
That  issue  of  the  first  generation  are  to  be  preferred  to  other 
kindred  ;   (2)  That  issue  of  deceased  heirs  rejiresent  their  parents ; 


128  ELEMENTARY   LAW  §  114 

(3)  That  where  lineal  descendants  fail,  or  are  more  remote  than 
a  certain  degree,  lineal  ascendants  may  inherit ;  (4)  That  males 
and  females  of  the  same  degree  inherit  equally  as  coparceners 
or  as  tenants  in  common ;  (5)  That  husbands  and  wives  may,  in 
some  cases,  inherit  from  one  another;  (G)  That  collateral  heirs 
may  take  in  the  absence  of  lineal  heirs ;  (7)  That  kindred  of  the 
half  blood  may  inherit  equally  with  or  in  default  of  kindred  of 
the  whole  blood.  Complete  uniformity  in  all  other  details  of  the 
law  of  descent,  though  greatly  to  be  desired,  can  scarcely  be  ex- 
pected in  view  of  the  force  of  long-imbedded  customs  and  local 
traditions. 

Read:  2  Bl.  Com.,  pp.  202-207,  227; 
4  Kent  Com.,  Lect.  Ixv,  pp.  374-419; 
Washburn,  Real  Property,  §§  1825-1865,  and  note; 
Barbour,  Rights  of  Persons  and  Property,  pp.  331-334; 
Walker,  American  Law,  §§  187-193; 
Clark,  Elementary  Law,  §  205; 
Tiedeman,  Real  Property,  §§  665-675; 
Kerr,  Real  Property,  §§  391-418,  2257-2269; 
Pingrey,  Real  Property,  §§  1126-1157; 
Rice,  Real  Property,  §§  325-332; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  447-456; 
Warvelle,  Real  Property,  pp.  142-158; 
Boone,  Real  Property,  §§  262-275; 
Tiffany,  Real  Property,  §§  425-435. 

§  114.     Of  Title  by  Purchase. 

Title  by  "purchase  is  of  fourteen  species:  (1)  Title  by  Escheat; 
(2)  Title  by  Accretion;  (3)  Tide  by  Abandonment;  (4) 
Title  by  Forfeiture;  (5)  Title  by  Prescription;  (6)  Title  by 
Adverse  Possession ;  (7)  Title  by  Marriage ;  (8)  Title  by  Exe- 
cution; (9)  Title  by  Judicial  Decree;  (10)  Tide  by  Emi- 
nent Domain;  (11)  Title  by  Prior  Occupation;  (12)  Title 
by  Estoppel;  (13)  Title  by  Grant;  (14)  Title  by  Devise.  Of 
these  the  titles  by  escheat  and  accretion  arise  by  operation  of 
the  law  alone  upon  the  occurrence  of  certain  events,  without 
requiring  any  act  of  either  the  present  or  the  former  owner  of 
the  property.  The  titles  by  abandonment,  forfeiture,  pre- 
scription, adverse  possession,  marriage,  execution,  judicial 
decree,  eminent  domain,  prior  occupation,  and  estoppel  originate 
in  the  operation  of  the  law  upon  the  actions  or  omissions  either 
of  the  former  or  the  present  owner  of  the  property.  The  titles 
by  grant  and  devise  are  created  by  the  concurrent  action  of 
both  the  present  and  the  former  owners  of  the  property. 


§  115  TITLE  TO  REAL   PROPERTY  129 

Rem.  The  legal  character  of  a  species  of  title  cannot  always 
be  accurately  determined  from  the  name  it  bears,  or  the  form  it 
may  assume;  its  purpose  and  effect  must  also  be  considered. 
Thus  a  devise,  to  an  heir  at  law,  of  the  same  property  which  he 
would  otherwise  inherit  does  not  vest  the  property  in  him  by 
title  by  devise ;  on  the  contrary,  he  receives  it  by  title  by  descent, 
according  to  the  legal  effect  of  the  transaction. 

Read:  Washburn,  Real  Property,  §§  1824,  1856; 
Clark,  Elementary  Law,  §  206; 
Warvelle,  Real  Property,  pp.  158-160. 


§  115.     Of  Title  by  Escheat. 

Title  by  escheat  is  the  title  by  which  the  State  acquires  an 
estate  in  fee  simple  upon  the  death  of  its  former  owner  intestate 
and  without  heirs.  Theoretically,  all  estates  in  real  property 
were  originally  derived  from  the  State  of  whose  territory  that 
property  forms  a  part;  and  therefore,  on  failure  of  private 
ownership,  the  property  returns  into  the  common  ownership 
of  the  State.  Before  the  State  takes  actual  possession,  however, 
there  is  usually  a  formal  incjuiry  as  to  the  failure  of  heirs  called 
"inquest  of  office"  or  "office  found."  Property  vesting  in  the 
State  by  this  title  is  subject  to  all  the  easements,  mortgages,  and 
other  incumbrances  which  attached  to  it  in  the  hands  of  the 
former  owner. 

Rem.  The  doctrine  of  escheat  had  its  origin  in  the  feudal 
law  and  recognized  the  right  of  the  sovereign,  as  the  ultimate  lord 
of  the  fee,  to  the  reversion  of  all  estates  which  failed  for  want  of 
owners,  or  were  forfeited  for  treason  or  other  crimes  against  the 
State.  Naturally,  the  same  principle  is  apj)lie(l  in  this  country, 
where  no  feudal  relation  exists,  for  it  is  e(|ually  rej)ugnant  to  our 
law  that  proj)erty  should  be  without  an  owner,  or  that  on  an  en- 
tire failure  of  title  it  should  enure  to  the  benefit  of  individuals  as 
against  the  general  j^ublic.  Property  acquired  by  the  State  by  this 
title  may  be  granted  to  private  persons,  or  applied  to  charitable 
purposes. 

Read:  2  HI.  Com.,  pp.  244-257; 

4  Kent  Com..  Loot.  Ixiv,  pp.  423-426; 
Washburn,  Real  Property,  §§  1 SOCV 1 874  ; 
Barbour,  Rights  of  Persons  and  Property,  pp.  559,  560; 
Andrews,  .American  Law,  §§  584-593; 
Clark,  Elementary  Law,  §  207; 
Pingrey,  Real  Projtorty,  §  1205; 

9 


130  ELEMENTARY   LAW  §  116 

Rice,  Real  Property,  §  367; 

Kirchwey,  Readings  on  tlie  Law  of  Real  Property,  pp.  366-369, 

470-474 ; 
Warvelle,  Real  Property,  pp.  183-186; 
Boone,  Real  Property,  §  255; 
Tiffany,  Real  Property,  §  458. 

§  116.     Of  Title  by  Accretion. 

Title  by  accretion  is  the  title  by  which  the  owner  of  land 
acquires  an  estate  in  other  land,  which  has  been  added  thereto 
by  the  operation  of  natural  causes.  Where  the  operation  of 
these  causes  is  so  gradual  that  only  the  results  and  not  the 
actual  process  can  be  perceived,  the  added  matter  is  called 
alluvion,  and  belongs  to  the  owner  of  the  land  on  which  it  is 
deposited.  Where  the  operation  is  sudden  and  extensive,  so 
that  the  process  and  result  can  both  be  discerned,  it  is  called 
avulsion  and  still  belongs  to  its  original  owner,  unless  abandoned 
by  him  to  the  owner  of  the  land  on  which  it  has  been  thrown. 
Changes  produced  by  artificial  causes  do  not  give  rise  to  title  by 
accretion,  and  except  by  contract  between  the  parties,  or  by 
estoppel,  do  not  affect  their  former  rights  of  property. 

Rem.  Most  of  the  instances,  in  which  property  is  acquired  by 
title  by  accretion,  occur  from  the  action  of  water,  either  washing 
away  or  adding  to  the  shores,  or  submerging  or  elevating  and 
leaving  bare  the  beds  of  streams  and  seas,  or  altering  the  course 
of  rivers  and  their  boundaries.  What  effect  this  action  has  on 
ownership  depends  in  part  on  the  existing  titles,  and  in  part  on  the 
mode  in  which  the  changes  take  place.  In  public  waters,  where 
the  bed  is  owned  by  the  State,  such  alluvion  as  accumulates  in 
direct  contact  with  the  shores  belongs  to  the  riparian  proprietors, 
and  is  divided  between  them  by  allotting  to  each  the  same  pro- 
portion of  the  new  coast  line  that  he  had  of  the  old,  and  then  pro- 
ducing the  lateral  boundaries  of  his  land  until  they  meet  the 
termini  of  his  new  boundary  upon  the  shore.  Islands  forming  in 
public  waters,  and  separated  from  the  shore  by  a  channel,  belong 
to  the  State.  In  private  waters  alluvion  forming  on  the  shores,  or 
islands  arising  from  the  bed,  follow  the  ownership  of  bed  or  shore 
according  to  the  original  boundary,  unless  the  boundary  is  the 
filum  aqucB,  —  in  which  case  as  the  thread  of  the  stream  gradually 
varies  the  boundary  varies  with  it.  A  sudden  and  considerable 
alteration  in  the  course  of  a  stream  does  not  cliange  the  boundary, 
but  each  proprietor  maintains  his  former  area,  though  the  whole 
stream  may  be  now  embraced  in  the  land  of  one  or  the  other. 


§  117  TITLE  TO   REAL   PROPERTY  131 

Wreckage  carried  by  a  freshet  and  deposited  on  lower  land  may  be 
reclaimed  by  its  owner,  or  ejected  by  the  owner  of  the  lower  land  ; 
but  the  latter  ac(juires  no  title  to  it  unless  its  owner  neglects  to 
remove  it  within  a  reasonable  time. 

Read:  2  Bl.  Com.,  pp.  261,  262; 
3  Kent  Com.,  Lect.  Hi,  p.  428; 
Washburn,  Reul  Property,  §§  1880-1887; 
Clark,  Elementary  Law,  §  208; 
Tiedeman,  Real  Property,  §§  685-687; 
Kerr,  Real  Property,  §  2272; 
Pingrey,  Real  Property,  §§  11-13; 
Rice,  Real  Property,  §  367; 
Warvelle,  Real  Property,  pp.  175-179; 
Boone,  Real  Property,  §§  254-254  o; 
Tiffany,  Real  Property,  §§  453-455. 


§  117.     Of  Title  by  Abandonment. 

Title  by  abandonment  is  the  title  whereby  the  owner  of  an 
estate  which  is  subject  to  an  incorporeal  hereditament  acquires 
the  right,  without  his  own  act,  to  hold  his  estate  free  from  the 
burden  of  such  incorporeal  hereditament.  Tliis  title  can  arise 
only  when  the  owner  of  the  hereditament  does  some  voluntary 
and  unequivocal  act  which  manifests  his  permanent  intention 
to  relinquish  his  right  to  the  hereditament;  as  where  he  erects 
a  solid  building  on  his  own  land  which  cuts  off  his  access  to  his 
right  of  way  across  the  servient  land ;  or  where  he  moves  a 
dam  to  a  point  higher  up  the  stream,  and  thus  renders  it  im- 
possible to  avail  himself  of  his  former  right  of  flowage.  Mere 
non-user,  however,  does  not  destroy  a  vested  incorporeal  heredit- 
ament, though  if  long  continued,  and  accompanied  by  acts  of 
exclusion  on  the  part  of  the  owner  of  the  servient  estate,  it  may 
operate  by  estoppel  to  defeat  the  right. 

Rem.  A  distinction  is  sometimes  taken  between  incorporeal 
hereditaments  acquired  by  express  or  implied  grant,  and  those 
acquired  by  prescrijition  or  presumed  grant,  in  reference  to  the 
effect  of  non-user  as  an  abandonment.  While  it  is  held  that 
those  acquired  by  express  or  implied  grant  cannot  be  lost  by  mere 
non-user,  because  the  record  owner  is  at  liberty  to  enjoy  his  right 
or  not  as  he  j)leases,  it  is  maintained  that  one  whose  right  rests 
wholly  upon  the  presuin])tion  arising  from  long-continued  use 
may  by  non-user  rebut  those  presumptions,  and  thus  extinguish 
the  apparent  title  which  his  i)Ossession  has  conferred  upon  him. 


132  ELEMENTARY   LAW  §  118 

Read:  3  Kent  Com.,  Lect.  lii,  pp.  448-451; 

Washburn,  Real  Property,  §§  1273-1276,  1312-1315,  1888,  1959; 
Clark,  Elementary  Law,  §  209; 
Tiederaan,  Real  Property,  §§  739,  740; 
Kerr,  Real  Property,  §  2276. 


§  118.     Of  Title  by  Forfeittire. 

Title  hy  forfeiture  is  the  title  by  which  one  person  acquires  a 
new  estate,  or  the  enlargement  of  an  existing  estate,  or  the 
acceleration  of  a  future  estate,  in  consequence  of  the  wrongful 
action  or  omission  of  another  person  who  has  thereby  lost  his 
own  different  estate.  To  perfect  this  title  the  person  in  whose 
favor  it  is  to  operate  must  erHer  on  the  property  and  assert  his 
right,  unless  relieved  from  that  formal  duty  by  contract  or 
local  law.  A  common  example  of  this  title  occurs  where  a 
tenant  for  years  forfeits  his  estate  by  the  breach  of  some  con- 
dition, and  the  landlord  thereupon  ejects  him  and  reoccupies 
the  land,  —  thus  anticipating  the  time  when  his  reversion 
would  naturally  accrue. 

Rem.  The  causes  of  forfeiture  under  the  English  law  were 
numerous,  of  which  the  principal  were  (1)  Heinous  crimes,  such 
as  treason,  and  the  like;  (2)  Alienation  hy  particular  tenants  in 
derogation  of  the  rights  of  the  remainderman  or  reversioner; 
(3)  Disclaimer  hy  a  tenant  of  the  title  of  his  landlord ;  (4)  Waste 
hy  a  tenant.  Forfeitures  of  real  property  for  crime  are  in  this 
country  comparatively  unknown.  Forfeiture  for  alienation  by 
particular  tenants  has  been  practically  superseded  by  the  rule 
that  such  alienations  are  ineffective  beyond  the  interest  which 
the  tenant  has  a  right  to  convey.  Forfeitures  for  disclaimer  of 
title  and  for  waste,  as  well  as  for  breach  of  conditions  subse- 
quent, though  not  favored  by  our  courts,  are  still  recognized  by 
our  law. 

Read:  2  Bl.  Com.,  pp.  267-286; 

4  Kent  Com.,  Lect.  Iv,  pp.  80-84;    Lect.  Ivi,  p.   106;    Lect.  Ixvi, 

pp.  426-428; 
Washburn,  Real  Property,  §§  229-233,  659-666,  684,  960-965; 
Barbour,  Rights  of  Persons  and  Property,  pp.  573-575, 
Clark,  Elementary  Law,  §  210; 
Tiedeman,  Real  Property,  §§  197-200; 
Pingrey,  Real  Property,  §  1266; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  475-485; 
Warvelle,  Real  Property,  pp.  186,  187; 
Tiffany,  Real  Property,  §§  52,  459. 


§  119  TITLE  TO   REAL   PRpPERTY  133 

§  119.     Of  Title  by  Prescription.  A. 

Title  bij  pir.s-rription  is  the  title  by  which  a  person  who  enjoys 
the  use  of  an  incorporeal  hereditament  under  certain  circum- 
stances, and  for  a  certain  j)eriod,  acquires  an  estate  in  that 
hereditament  which  is  commensurate  with  his  accustomed  use. 
The  period  of  the  use  is  fixed  by  local  laws,  particularly  by  the 
Statute  of  Limitations,  "^riie  circum.stances  of  the  use  are  these: 
(1)  Adverse,  —  that  is,  inconsistent  with  the  full  enjoyment  of 
the  servient  property  by  its  true  owner,  according  to  the  nature 
of  his  estate  therein ;  (2)  Under  a  claim  of  right,  —  that  is, 
with  the  avowal  by  words  or  unecpiivocal  conduct,  on  the  part 
of  the  user,  that  he  has  a  legal  right  so  to  use  the  hereditament ; 
(3)  Continuous,  —  that  is,  without  abandonment  or  disuse,  or 
substantial  alteration  in  the  mode  or  extent  of  his  use,  of  the 
hereditament;  (4)  Uninterrupted,  —  that  is,  used  during  the 
whole  of  the  required  periotl  of  time  by  the  same  person,  or  by 
a  series  of  persons  each  of  whom  claims  to  have  derived  his 
title  through  his  predecessors  in  the  use  from  the  original  ad- 
verse user;  (5)  Peaceable,  —  that  is,  without  such  interference 
from  the  owner  of  the  servient  pro])erty  as  susj)ended,  or  re- 
stricted, or  terminated,  or  in  any  hostile  manner  obstructed 
the  use;  (0)  With  the  knoivledgc  of  the  owner  of  the  servient 
property,  —  that  is,  with  actual  information  upon  his  part,  from 
the  beginning  of  the  use,  that  it  not  only  existed  but  was  in- 
tended by  the  user  as  the  assertion  of  a  legal  right. 

Rem.  Title  by  prescription  is  identical  with  title  by  presumed 
grant,  and  apj)lies  only  to  incorporeal  hereditaments.  Incor- 
poreal hereditaments  always  arise  out  of  a  grant  by  the  owner  of 
the  servient  j)roperty;  and  this  grant  may  be  in  ex|)ress  words, 
or  may  be  implied  from  the  ex{)ress  grant  of  an  ()l)ject  to  which 
the  incorporeal  hereditament  necessarily  attaches,  or  may  be 
presumed  by  the  law  from  circumstances  which  cannot  be  ex- 
plained except  upon  the  supposition  that  an  express  grant  has 
been  made  and  cannot  now  be  found.  Thus  where  the  owner  of 
the  servient  estate  knowingly  and  peaceably  acouiesces  in  the 
adverse,  continuous,  and  uninterrupted  use  of  an  incorporeal 
hereditament  in  his  property  by  another  person,  under  a  claim 
of  right,  mitil  the  law  deprives  him  of  a  legal  remedy  to  prevent  it, 
his  conduct  is  in(>xplicable  except  upon  tli(>  theory  that  he  had  no 
power  to  prevent  it,  because  the  claim  of  right  was  founded  on  a 
valid   grant   which   could   not   be  disputed   althougli   the  docu- 


134  ELEMENTARY   LAW  §  120 

ment  containing  it  has  since  been  lost.  Such  a  use  also  has  all 
the  ear-marks  of  true  ownership,  and  contains  nothing  and  omits 
nothing  which  the  grant  of  the  hereditament  by  an  express  grant 
would  not  omit  or  contain.  Hence  title  by  prescription,  once 
perfected  by  lapse  of  time,  is  as  impregnable  as  a  title  by  original 
grant,  although  the  claimant  is  always  subject  to  be  put  upon  its 
proof  by  any  owner  of  the  servitMit  property.  Title  by  prescrip- 
tion is  sometimes  identified  with  title  by  estoppel,  but  the  identity 
is  not  complete.  There  is  an  appearance  of  estoppel  in  title  by 
prescription,  in  so  far  as  the  owner  of  the  servient  estate,  who  has 
acquiesced  in  the  use  of  the  hereditament  until  his  remedy  is 
barred  by  law,  is  now  forbidden  to  assert  it,  but  this  is  quite  a 
different  matter  from  the  legal  j^resumption  of  an  original  ex- 
press grant.  Moreover,  the  right  to  an  incorporeal  hereditament 
may  arise  by  estoppel  from  the  acts  or  omissions  of  the  owner  of 
the  servient  estate,  without  reference  to  the  lapse  of  time  and 
several  other  necessary  attributes  of  the  user  which  alone  can 
ripen. into  title  by  prescription.  These  two  titles  spring  from  dif- 
ferent sources,  and  rest  on  entirely  different  principles,  and  though 
they  may  sometimes  apply  to  the  same  state  of  facts  nothing  can 
be  gained  by  confounding  them  with  one  another. 

Read:  2  Bl.  Com.,  pp.  263-266; 

3  Kent  Com.,  Lect.  lii,  pp.  441-445; 

Washburn,  Real  Property,  §§  1249-1263,  1877-1879; 

Barbour,  Rights  of  Persons  and  Property,  pp.  575—578; 

Clark,  Elementary  Law,  §  211; 

Kerr,  Real  Property,  §  2271; 

ffirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  495-501; 

Warvelle,  Real  Property,  pp.  193-195; 

Boone,  Real  Property,  §§  248-251; 

Tiffany,  Real  Property,  §§  445-452. 


§  120.     Of  Title  by  Adverse  Possession. 

Title  by  adverse  possession  is  the  title  by  which  the  possessor 
of  land,  after  a  certain  period  of  exclusive  possession,  acquires 
by  virtue  of  such  possession  a  fee  simple  estate  therein.  To 
have  this  effect  his  possession  must  be  (1)  Actual,  —  that  is, 
a  physical  occupation  of  the  land,  either  by  the  adverse  possessor 
himself  or  by  some  other  person  claiming  title  under  him;  (2) 
Definite,  —  that  is,  limited  to  a  specific  area,  with  such  per- 
ceptible boundaries  that  the  precise  extent  of  the  physical 
occupation  is  always  ascertainable ;  (3)  Notorimis,  —  that  is, 
so  open  and  apparent  that  no  one  familiar  with  the  land,  as  the 
real  owner  is  presumed  to  be,  could  fail  to  be  aware  of  the 


§  120  TITLE  TO   REAL   PROPERTY  135 

adverse  possession ;  (4)  Hostile,  —  that  is,  inconsistent  with 
the  assertible  seisin  of  the  land  by  its  true  owner  m  fee  simple; 
(5)  Continued,  —  that  is,  without  abandonment  of  the  land  by 
the  adverse  possessor,  and  without  entry  on  the  land  by  its  true 
owner ;  (6)  Exclusive,  —  that  is,  undisturbed  by  the  antag- 
onistic occupation  of  other  adverse  claimants  of  the  land;  (7) 
Uninterrupted,  —  that  is,  possessed  during  the  whole  of  the 
required  period  by  the  same  adverse  possessor,  or  by  a  series 
of  adverse  possessors  each  claiming  title  through  his  predecessors 
from  the  original  adverse  possessor ;  (8)  Under  a  claim  of  right, 
—  that  is,  with  the  open  assertion  by  the  adverse  possessor,  in 
unequivocal  words  or  acts,  that  he  holds  possession  of  the  land 
as  its  lawful  owner  in  fee  simple.  When  an  adverse  possession, 
having  these  eight  attributes,  has  been  maintained  until  the  true 
owner  of  the  land  has  been  deprived,  by  the  Statute  of  Limita- 
tions, of  his  right  of  entry  to  regain  possession,  the  adverse 
possessor  can  maintain  his  possession  against  all  the  world,  and 
is  henceforth  recognized  by  the  law  as  the  owner  in  fee  simple. 
The  estate  which  he  acquires,  however,  is  not  derived  from  nor 
based  upon  the  estate  of  the  former  owner  of  the  land,  but  is  a 
Tiew  and  independent  estate  arising  by  operation  of  law  upon  his 
own  adverse  possession,  and  the  neglect  of  the  former  owner  to 
assert  his  rights  within  the  time  allowed  him  for  that  purpose. 

Rem.  Title  by  adverse  possession  differs  from  title  by  pre- 
scription in  three  particulars:  (1)  It  relates  to  land  only,  and  not 
to  incorporeal  hereditaments ;  (2)  It  does  not  rest  on  a  presumed 
grant  from  the  real  owner  of  the  land,  but  openly  repudiates 
his  title  and  insists  on  independent  ownership  in  the  adverse 
possessor;  (3)  It  does  not  result  in  a  right  limited  to  the  mode 
of  the  possession,  but  in  an  unlimited  and  absolute  dominion 
over  the  entire  property  possessed.  There  is,  therefore,  nothing 
in  common  between  these  two  titles,  except  that  both  arise  out 
of  long  continued  possessions  some  of  whose  attributes  are  simi- 
lar to  each  other,  and  they  should  never  be  confused  with  one 
another.  Title  by  adverse  possession  is  also  distinct  from  title 
by  estoppel,  inasmuch  as  it  requires  the  positive  bar  of  the  Statute 
of  Limitations  to  give  it  effect,  while  estoppel  may  arise  from 
circumstances  alone  and  without  reference  to  lapse  of  time. 
Moreover,  it  has  no  resemblance  to  title  hi/  an  actual  grant,  the 
instrument  containing  wjiich  is  now  lost  or  destroyed,  but  whose 
former  existence  is  allowed  to  he  proved  by  a  long  possession 


136  ELEMENTARY   LAW  §  121 

bearing  all  the  marks  of  rightful  ownership.  It  is,  indeed,  some- 
times stated  that  title  by  adverse  possession  is  aided  by  legal 
presumptions  arising  from  the  possession  of  the  claimant  and  the 
acquiescence  of  the  real  owner  of  the  land,  but  this  language  is 
not  consistent  with  the  present  interpretation  of  the  Statute  of 
Limitations,  which  regards  it  not  as  a  statute  of  presumptions 
but  as  a  statute  of  repose.  Land  accjuired  by  adverse  possession 
is  free  from  all  the  burdens  and  limitations  which  attach  to  prior 
estates  in  the  property,  but  the  title  not  being  evidenced  by  deed 
or  record  the  ownership  must  be  proved,  whenever  disputed,  by 
showing  the  adverse  possession  by  which  it  was  obtained. 

Read:  2  Bl.  Com.,  pp.  195-199; 

Washburn,  Real  Property,  §§  1944-1994; 
Barbour,  Rights  of  Persons  and  Property,  pp.  553-556; 
Walker,  American  Law,  §§  177,  178; 
Clark,  Elementary  Law,  §  212; 
Tiedeman,  Real  Property,  §§  692-704,  713-717; 
Kerr,  Real  Property,  §§  2273,  2274; 
Pingrey,  Real  Property,  §§  1158-1200; 
Rice,  Real  Property,  §§  333-345; 
Warvelle,  Real  Property,  pp.  195-199; 
Boone,  Real  Property,  §§  252-255  c; 
Tiffany,  Real  Property,  §§  436-444; 

Bolles,   Important  English  Statutes,  p.  45,  Statute   of   Limitations, 
Henry  VIII ;   p.  83,  Statute  of  Limitations,  21  James  I. 

§  121.     Of  Title  by  Marriage. 

Title  by  marriage  is  the  title  by  which  a  husband  acquires  an 
estate  in  the  real  property  of  his  wife,  or  a  wife  acquires  an 
estate  in  the  real  property  of  her  husband,  as  incidental  to  the 
marriage  relation.  These  estates  arise  by  operation  of  law  either 
immediately  upon  the  marriage,  or  upon  the  occurrence  of  cer- 
tain subsequent  events.  The  principal  estates  thus  created  are 
curtesy  and  dower. 

Rem.  Until  recently  the  common  law  of  England  and  the 
United  States  conferred  upon  a  husband,  at  the  time  of  his  mar- 
riage, all  estates  less  than  freehold  belonging  to  the  wife  and  the 
rents  and  profits  of  her  freehold  estates,  together  with  their  actual 
control  during  the  coverture,  and  a  prospective  estate  by  curtesy 
if  the  requisite  conditions  should  be  fulfilled.  At  the  same  time 
the  wife  acquired  a  prospective  right  of  dower  in  her  husband's 
estates  in  fee.  These  rights  have  been  modified  in  various  ways 
by  the  local  statutes  of  our  States  during  the  past  two  generations, 
and  only  by  consulting  them  can  the  present  scope  of  title  by 
marriage  be  fully  ascertained. 


§  122  TITLE  TO   REAL   PROPERTY  137 

Read:  2  Kent  Com.,  Lect.  xxviii,  pp.  130-134; 
Washburn,  Real  Property,  §§  520-539; 
Clark,  Elementary  Law,  §  213; 
Tiedeman,  Real  Property,  §§  90-94; 
Kerr,  Real  Property,  §§  1475-1498; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  486-491 ; 
Tiffany,  Real  Property,  §§  176-178.  ^ 


A 


§  122.     Of  Title  by  Execution. 

Title  by  execution  is  the  title  by  which  a  judgment  creditor,  or 
some  other  person,  acquires  an  estate  in  such  real  property  of 
the  judgment  debtor  as  may  be  sold  or  set  off  by  legal  process 
in  satisfaction  of  the  judgment  debt.  In  all  our  States  real 
property  as  well  as  personal  can  be  seized  and  applied  by  the 
law  to  the  payment  of  the  owner's  obligations.  When  suit  is 
brought  upon  such  obligations  by  the  creditor,  and  he  obtains 
a  judgment  against  the  debtor,  the  obhgation  sued  upon  is 
merged  in  the  judgment,  and  the  judgment  is  enforced  by  levying 
an  execution  upon  the  property  of  the  debtor.  The  mode  of 
levying  an  execution  on  real  property  differs  in  different  States. 
In  some,  so  much  of  the  property  as  may  be  necessary  to  satisfy 
the  claim  is  conveyed  directly  by  the  sheriff  to  the  creditor.  In 
others,  the  land  is  sold  at  auction,  the  judgment  satisfied  out 
of  the  proceeds,  and  the  balance  delivered  to  the  debtor.  In 
others,  a  portion  of  the  land  may  be  set  out  to  the  creditor  to 
hold  until  its  rents  and  profits  pay  the  debt.  Title  by  execution 
also  includes  the  methods  by  which  the  taxes  and  assessments 
due  the  State  are  collected  out  of  the  projjerty  of  the  subject. 
Estates  acquired  by  execution  are  liable  to  all  incumbrances 
and  conditions  attached  to  the  land  in  the  hands  of  the  debtor, 
unless  exempted  by  special  statutes. 

Rem.  Prior  to  a.  d.  1732,  although  lands  could  be  set  out  on 
execution  to  a  judgment  creditor  to  liold  until  the  rents  and 
profits  paid  the  debt,  the  land  itself  could  not  be  permanently 
taken  from  the  debtor  and  its  ownership  transferred  to  another. 
By  Act  of  Parliament,  in  A.  D.  173-^  lands  in  the  American 
colonies  were  authorized  to  be  sold  on  execution  for  the  judg- 
ment debts  of  their  owners,  and  such  has  ever  since  been  the 
law  of  this  country.  In  many  of  our  States  a  judrjmrnt  lien 
attaches  to  the  lands  of  the  debtor  at  the  date  of  the  judgment, 
and  may  be  foreclosed  like  a  mortgage. 


138  ELEMENTARY  LAW  §  123 

Read:  3  Bl.  Com.,  pp.  418,  419; 

4  Kent  Com.,  Lect.  Ixvi,  pp.  428-439; 

Washburn,  Real  Property,  §§  2045,  2046,  2060-2076; 

Barbour,  Rights  of  Persons  and  Property,  pp.  568,  569; 

Clark,  Elementary  Law,  §§214,  215,  218; 

Tiedeman,  Real  Property,  §§  757,  759-761; 

Kerr,  Real  Property,  §§  2303,  2304; 

Pingrey,  Real  Property,  §§  1271,  1275; 

Rice,  Real  Property,  §§  41,  42,  363-367; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  529-531 ; 

Warvelle,  Real  Property,  pp.  187-189,  329-335,  408-413; 

Boone,  Real  Property,  §§  260,  261; 

Tiffany,  Real  Property,  §§  460,  467-470. 

§  123.     Of  Title  by  Judicial  Decree. 

Title  by  judicial  decree  is  the  title  by  which  a  person  acquires 
an  estate  in  real  property  by  virtue  of  the  judicial  action  of  a 
court  which,  of  its  own  authority  and  without  the  concurrent 
acts  of  either  of  the  parties,  directly  creates  the  estate  in  his 
favor  or  transfers  it  to  him  from  the  former  owner.  Examples 
of  this  title  occur  in  proceedings  in  involuntary  bankruptcy, 
where  the  real  property  of  the  bankrupt  is,  by  the  decree  of 
bankruptcy,  vested  in  the  assignee;  and  in  cases  where  a  court 
of  equity  decrees  that  the  title  to  real  property  shall  henceforth 
reside  in  a  definite  person,  without  requiring  the  present  owner 
to  execute  to  him  a  formal  conveyance. 

Rem.  In  many  cases  courts  have  power  to  order  the  present 
owners  of  real  property  to  create  new  estates  in  it,  or  to  transfer 
existing  estates.  So  also  they  may  empower  persons  other  than 
the  owners,  such  as  guardians  of  infants  or  lunatics,  and  the 
executors  or  administrators  of  decedents'  estates,  to  convey  the 
lands  of  their  wards  or  decedents  by  formal  deeds.  In  such 
cases,  though  the  authority  or  obligation  to  make  the  convey- 
ance rests  upon  a  judicial  decree,  the  title  of  the  grantee  is 
properly  a  title  by  deed,  since  it  is  by  virtue  of  the  written  con- 
veyance that  the  estate  vests  in  the  grantee. 
Read:  2  Bl.  Com.,  pp.  285,  286; 

Washburn,  Real  Property,  §§  2047-2059,  2077-2080; 

Walker,  American  Law,  §  55; 

Andrews,  American  Law,  §§  285-295; 

Clark,  Elementary  Law,  §  216; 

Tiedeman,  Real  Property,  §§  751-756,  758; 

Kerr,  Real  Property,  §§  2300,  2302; 

Pingrey,  Real  Property,  §  1264,  1273,  1274; 

Warvelle,  Real  Property,  pp.  413-419; 

Tiffany,  Real  Property,  §§  461-466. 


§§  124,  125         TITLE  TO   REAL   PROPERTY  139 

§  124.     Of  Title  by  Eminent  Domain. 

Title  by  eminent  domain  is  the  title  whereby  the  State,  or 
some  person  acting  in  its  name  and  under  its  authority,  acquires 
an  estate  in  the  real  property  of  an  individual  when  such  property 
is  needed  for  public  use.  The  right  to  take  private  property  for 
public  use  is  inherent  in  every  government,  and  may  be  exercised 
on  behalf  of  purely  governmental  enterprises,  or  on  behalf  of 
individuals  or  corporations  engaged  in  prosecuting  works  of  a 
quasi  public  nature,  such  as  railroads  and  canals.  In  this  country 
the  fundamental  law  provides  that  adequate  compensation  for 
the  property  thus  taken  must  be  made  to  the  private  owner. 
The  mode  of  appropriating  the  property,  and  awarding  the 
compensation,  is  usually  prescribed  in  detail  by  local  statutes 
which  must  be  exactly  followed,  or  the  title  will  be  void. 

Rem.  The  State  is  the  sole  judge  whether  and  to  what  ex- 
tent private  property  shall  be  taken  for  an  acknowledged  public 
use,  but  whether  or  not  a  proposed  use  is  public  is  a  question  for 
the  courts,  and  may  be  raised  in  his  defence  by  the  individual 
owner  of  the  land.  Still,  as  public  use  includes  whatever  pro- 
motes public  safety,  convenience,  or  enjoyment,  its  scope  is  %vide 
enough  to  cover  almost  any  enterprise  in  which  the  State,  or 
persons  acting  under  its  authority,  may  see  fit  to  engage. 

Read:  2  Kent  Com.,  Lect.  xxxiv,  pp.  339,  340; 
Cooley,  Const.  Lirn.,  pp.  52.3-571; 
Washburn,  Real  Property,  §  1875; 
Clark,  Elementary  Law,  §  217; 
Kerr,  Real  Property,  §§  2298,  2299; 
Pingrey,  Real  Property,  §  1272 ; 
Rice,  Real  Property,  §§  354-362; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  532-534; 
Warvelle,  Real  Property,  pp.  179-183; 
Boone,  Real  Property,  §§  256-256  d; 
Tiffany,  Real  Property,  §§  471-474. 

§  125.     Of  Title  by  Prior  Occupation. 

Title  by  prior  occupation  is  the  title  by  which  the  earliest 
occupant  of  real  property  acquires  an  estate  therein.  This  is 
the  primitive  title  on  which  all  ownership  ultimately  rests,  and 
still  arises  in  many  States  under  specified  conditions  in  reference 
to  mining,  irrigation,  and  mill  rights,  and  the  distribution  of 
public  lands  to  private  individuals.  But  with  these  exceptions 
there  is  now,   within  the  territory  of  organized  political  com- 


140  ELEMENTARY   LAW  §  126 

munities,  no  real  property  which  does  not  belong  to  somebody, 
and  hence  none  to  which  a  title  by  prior  occupation  can  be 
gained. 

Rem.  Under  the  rules  of  international  law  a  title  similar  to 
that  of  prior  occupation  may  arise,  in  lands  not  within  the  terri- 
tory of  any  organized  political  community,  in  favor  of  States 
belonging  to  the  family  of  nations  whose  explorers  first  dis- 
cover and  appropriate  such  lands. 

Read:  2  Bl.  Com.,  pp.  3-9,  258-362; 

2  Kent  Com.,  Lect.  xx:dv,  pp.  319-326; 

3  Kent  Com.,  Lect.  li,  pp.  377-390; 
Woolsey,  Int.  Law,  §  55; 

Washburn,  Real  Property,  §§  1285,  1319,  1876; 

Walker,  American  Law,  §§  175,  176; 

Tiedeman,  Real  Property,  §§  681-683; 

Pingrey,  Real  Property,  §§19,  29-38; 

Rice,  Real  Property,  §§  31,  32,  367; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  492-494; 

Warvelle,  Real  Property,  pp.  131-141; 

Boone,  Real  Property,  §  408. 

§  126.     Of  Title  by  EstoppeL 

Title  by  estoppel  is  the  title  by  which  one  person  acquires  an 
estate  or  a  quasi  estate  in  real  property  as  against  other  persons, 
by  whose  voluntary  conduct  he  has  been  misled  into  relations 
to  the  property  which  those  other  persons  could  not  now  defeat 
without  involving  him  in  serious  loss.  This  title  is  valid  only 
against  those  owners  of  the  property  who  have  participated  in 
the  conduct  which  gave  birth  to  the  estoppel,  and  those  whose 
title  was  derived,  subsequently  to  the  estoppel,  from  the  per- 
sons on  whose  wrongful  conduct  it  was  based. 

Rem,  Rights  arising  by  estoppel  may  be  of  any  extent  and 
variety,  from  a  simple  right  of  transitory  enjoyment  to  com- 
plete and  permanent  dominion  over  the  entire  property ;  though 
eminent  jurists  with  good  reason  assert  that  the  right  acquired 
can  never  be  of  higher  legal  character  than  a  quasi  estate.  The 
nature  and  measure  of  the  right,  in  any  given  case,  is  deter- 
mined by  the  relations  to  the  property  into  which  the  person 
relying  on  the  estoppel  has  been  misled. 

Read:  3  Bl.  Com.,  p.  308; 

4  Kent  Com.,  Lect.  hn,  pp.  98,  99;   Lect.  lix,  p.  261,  notes; 
Washburn,  Real  Property,  §§  1889-1943; 

Barbour,  Rights  of  Persons  and  Property,  pp.  563-568; 


§§  127,  128  TITLE  TO   REAL   PROPERTY  i4l 

Pingrey,  Real  Property,  §§  1201-1229; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  535-541; 

Warvelle,  Real  Property,  pp.  189-193; 

Boone,  Real  Property,  §§  253-253  a. 

§  127.     Of  Title  by  Grant.  /\^ 

Title  by  grant  is  the  title  by  which  one  person  acquires  an 
estate  in  real  property  though  the  present  voluntary  act  of  its 
existing  owner.  To  a  grant  jour  things  are  necessary:  (1) 
A  grantor  able  to  create  or  transfer  the  estate;  (2)  A  grantee 
able  to  receive  the  estate  whenever,  according  to  the  terms  of 
the  grant,  it  is  to  take  effect ;  (3)  Property  to  which  the  estate, 
as  created  by  the  grant,  can  legally  attach;  (4)  A  voluntary 
lawful  act  on  the  part  of  the  grantor  creating  or  transferring  the 
estate,  and  an  actual  or  presumed  acceptance  of  the  estate  on 
the  part  of  the  grantee.  Where  the  State  is  the  grantor  the  title 
conferred  is  called  a  "title  by  public  grant" ;  where  the  grantor 
is  a  private  individual  or  corporation  the  estate  is  said  to  be 
acquired  by  "private  grant." 

Rem.  All  persons  of  normal  status  are  able  to  be  grantors  or 
grantees.  Infants,  lunatics,  married  women,  aliens,  and  persons 
under  duress  may  be  grantees  unless  the  grant  imjKwes  u|)()n  them 
obligations  which  their  defect  of  caj)acity  forbids  them  to  assume. 
The  grants  of  persons  of  abnormal  status  are  always  voidable, 
upon  proof  that  the  grant  was  beyond  their  actual  or  legal  capac- 
ity. An  estate  is  presumed  to  be  accepted  by  the  grant(>e  when 
he  has  the  capacity  to  accept  it  and  it  is  evidently  for  his  benefit, 
unless  he  formally  declines  it  after  an  opportunity  to  do  so  is 
presented  to  him. 

Read:  2  Bl.  Com.,  pp.  290-294; 

Rob.  Am.  Jur.,  §§  27,  28,  35,  42.  43,  45,  61,  62; 

Washburn,  Real  Property,  §§  2099-2114,  2121-2124; 

Walker,  American  Law,  §  203; 

Pingrey,  Real  Proi)erty,  §  1276; 

Jones,  Real  Property,  §§  1-153,  156-192; 

Warvelle.  Real  Property,  pp.  228-243; 

Boone,  Real  Property,  §§  281-289. 

§  128.     Of  Title  by  Public  Grant. 

Title  by  publir  grant  is  tlii'  title  by  which  a  person  acquires 
an  estate  in  real  property  through  the  voluntary  act  of  the 
State  to  whom  the  ])n)perty  belongs.     The  fee  of  all  lands  in 


142  ELEMENTARY   LAW  §  129 

this  country  which  have  no  other  owner  is  vested  in  the  State 
where  the  land  is  situated,  and  such  lands  may  be  granted  by 
the  State  to  private  owners,  either  by  a  special  legislative  act 
or  by  a  proceeding  authorized  by  the  general  statutes.  In  the 
latter  case  the  grant  is  usually  made  by  a  formal  instrument 
called  a  "'patent,"  signed  by  the  officer  appointed  for  that  purpose 
and  sealed  with  the  great  seal  of  the  State.  The  terms  of  this 
patent,  when  doubtful,  are  construed  in  favor  of  the  State,  un- 
less the  grantee  has  paid  a  valuable  consideration  for  the  property ; 
then  they  are  interpreted  in  his  favor.  A  patent  regularly  issued 
is  conclusive  evidence  of  title.  When  two  lawful  patents  con- 
flict the  elder  will  prevail. 

Rem.  The  public  lands  belonging  to  the  United  States  are 
distributed  to  individual  owners  under  a  Land  System  estab- 
lished by  Acts  of  Congress,  for  a  knowledge  of  which  the  Federal 
Statutes,  and  the  regulations  of  the  Department  to  whose  man- 
agement the  system  is  entrusted,  must  be  consulted. 

Read:  Washburn,  Real  Property,  §§  1995-2043; 
Clark,  Elementary  Law,  §  219; 
Tiedeman,  Real  Property,  §§  744-747; 
Kerr,  Real  Property,  §§  2277-2284; 
Pingrey,  Real  Property,  §§1230-1253; 
Rice,  Real  Property,  §§  368-37G; 

Warvelle,  Real  Property,  pp.  160-164,  204-218,  319-328; 
Boone,  Real  Property,  §§  257-259; 
Tiffany,  Real  Property,  §§  370-374. 

§  129.     Of  Title  by  Private  Grant:  Deeds. 

Title  by  private  grant  is  the  title  by  which  one  person  acquires 
an  estate  in  real  property  belonging  to  another  person,  during 
the  hfetime  of  that  other  person  and  by  his  voluntary  act.  The 
voluntary  act  which  confers  this  title  is  now  usually  the  execution 
and  delivery  of  a  deed.  A  deed  is  a  writing  sealed  and  delivered 
between  the  parties.  It  must  be  made  by  a  party  able  to  contract, 
and  when  obligations  are  incurred  by  the  acceptance  of  the 
deed  the  grantee  also  must  possess  contracting  power.  It 
must  be  based  upon  a  good  consideration,  such  as  the  grantor's 
love  and  affection  for  the  grantee;  or  upon  a  valuable  con- 
sideration, such  as  money  or  services.  It  must  be  written  or 
printed  upon  parchment  or  paper  or  some  other  durable  material. 
Its  contents  must  be  legally  and  orderly  set  forth.     It  must  be 


§  129  TITLE  TO   REAL  PROPERTY  143 

free  from  any  erasures  or  interlineations  which  affect  its  meaning 
unless  they  are  noted  and  explained  on  the  face  of  the  deed  itself. 
It  must  be  signed  and  sealed  by  the  grantor,  whose  signature 
must  be  attested  by  the  required  number  of  witnesses ;  and  must 
be  acknowledged  by  the  grantor,  before  a  proper  magistrate,  as 
his  free  act  and  deed.  The  recording  of  a  deed,  though  not 
always  essential  to  its  vahdity  between  the  parties,  is  necessary 
to  protect  the  estate  of  the  grantee  against  the  creditors  of  the 
grantor  and  his  subsequent  bona  fide  purchasers  or  mortgagees. 

Rem.  The  Statute  of  Frauds  (a.  d.  1677),  required  all  con- 
tracts for  the  sale  of  any  interest  in  lands  to  be  in  writing.  This 
statute  is  still  in  force  in  this  country,  except  as  to  leases  for 
short  periods.  Prior  to  this  statute  conveyances  of  freehold,  not 
made  by  livery  of  seisin,  were  effected  by  sealed  instruments 
called  deeds.  Hence,  modern  deeds  are  both  signed  and  scaled. 
The  number  of  witnesses  required  varies  according  to  local  law, 
—  in  some  States  one  is  sufficient,  in  others  two  or  more  are 
necessary.  The  mode  of  acknowledgment  and  record  is  also 
fixed  by  local  laws.  When  deeds  contain  stipulations  by  both 
parties  they  are  usually  prepared  in  duplicate,  and  mutually  exe- 
cuted by  the  parties,  and  one  copy  is  dehvcred  to  each  for  pre- 
servation. Such  deeds  are  called  indentures,  because  in  ancient 
times  both  instruments  were  written  on  one  piece  of  parchment 
which  was  then  divided  by  a  toothed  incision,  by  the  matching 
of  whose  edges  the  identity  of  the  indented  parts  could  subse- 
quently be  determined.  A  deed  executed  by  the  grantor  alone  is 
known  as  a  deed-poll. 

Read:  2  Bl.  Com.,  pp.  295-298,  305-308; 
4  Kent  Com.,  Lect.  Ixvii,  pp.  450-459; 
Washburn,  Real  Property,  §§  2081-2098,  2125,  2188-2215; 
Walker,  American  Law,  §  202; 
Clark,  Elementary  Law,  §  219; 

Tiedeman,  Real  Property,  §§  783-803,  807-810,  816-819,  824; 
Kerr,  Real  Property,  §§  2305-2322,  2326,  2330,  2342-2344; 
Pingrey,  Real  Property,  §§  1277-1299,  1310-1316,  1329-1369,1371; 
Jones,  Real  Property,  §§211,  212,  263-310; 
Rice,  Real  Property,  §§  377,  380-382,  389,  391,  393; 
Warvelle,  Real  Property,  pp.  164-166,  199-203,  219-222,  243-247, 

288-298,  304-314,  317,318; 
Boone,  Real  Property,  §§  276-280,  292-293  a,  2E7,  319-321  a; 
Tiffany,   Real   Property,    §§  379-381,  384-386,   402-405,   475-492, 

501-505  a. 


144  ELEMENTARY   LAW  §  130 

§  130.    Of  Title  by  Private  Grant:  the  Species  of  Deeds. 

Deeds,  in  reference  to  their  effect,  are  either  Original  Deeds 
or  Derivative  Deeds.  An  original  deed  creates  a  new  estate. 
A  derivative  deed  either  modifies  or  destroys  or  transfers  an 
existing  estate.  Original  deeds  are  of  six  species:  (1)  Feoff- 
ment, creating  a  fee  simple;  (2)  Gift,  creating  a  fee  tail;  (3) 
Grant,  creating  an  incorporeal  hereditament;  (4)  Lease,  creat- 
ing any  estate  less  than  that  of  the  grantor;  (5)  Exchange, 
creating  mutual  estates  in  consideration  of  each  other;  (6) 
Partition,  creating  estates  in  severalty  between  joint  tenants. 
Derivative  deeds  are  of  five  species:  (1)  Rekase,  which  trans- 
fers to  the  present  particular  tenant  the  estate  in  reversion 
or  remainder;  (2)  Surrender,  which  transfers  to  the  remainder- 
man or  reversioner  the  present  particular  estate;  (3)  Assign- 
ment, which  transfers  to  a  stranger  the  exact  estate  of  the 
grantor;  (4)  Confirmation,  which  cures  some  defect  in  a 
former  estate,  and  thus  renders  a  voidable  estate  sure  and 
unavoidable ;  (5)  Defeasance,  which  accompanies  another  deed, 
and  under  certain  conditions  destroys  or  modifies  the  estate 
thereby  created.  These  eleven  species  of  deeds  were  known  to 
the  law  before  the  Statute  of  Uses  was  adopted.  The  doctrine 
of  that  Statute  led  to  the  employment  of  three  additional  species : 
(1)  Bargain  and  Sale,  which  creates  an  equitable  estate  for  a 
valuable  consideration,  the  equitable  estate  being  enlarged  by 
the  Statute  into  a  legal  estate;  (2)  Covenant  to  Stand  Seised, 
by  which  the  grantor,  in  consideration  bi  family  love  and  affection, 
agrees  to  hold  the  legal  estate  for  the  use  and  benefit  of  his 
wife,  son,  or  other  near  blood  relation;  (3)  Lease  and  Release, 
by  which  the  grantor  first  conveys  to  the  grantee,  for  valuable 
consideration,  an  equitable  estate  for  years,  and  after  this 
estate  takes  effect  in  possession  further  releases  to  him  the 
reversionary  interest  in  fee, —  whereby  the  equitable  estate  for 
years  is  merged  in  the  legal  estate  in  fee,  while  the  grantee 
being  already  in  possession  under  the  lease  no  livery  of  seisin  of 
the  legal  estate  is  necessary. 

Rem.  In  this  country  the  present  tendency  is  to  reduce  the 
number  and  simplify  the  forms  of  these  conveyances.  In  some 
States  a  deed  of  bargain  and  sale  for  the  creation  and  confirma- 
tion of  estates,  and  a  release  for  their  transfer,  modification,  or 


§  131  TITLE  TO   REAL   PROPERTY  145 

destruction,  are  the  principal  instruments  employed.  The  legal 
character  of  a  deed,  however,  is  determined  by  its  intended  eflFect 
and  not  by  its  form  or  name,  and  when  its  legal  character  is  as- 
certained its  interpretation  and  validity  are  governed  by  the 
rules   peculiar  to  the  species  to  which  it  belongs. 

Read:  2  Bl.  Com.,  pp.  309-327,  338,  339; 
4  Kent  Com.,  Lect.  Ixvii,  pp.  480-496; 
Washburn,  Real  Property,  §§  2229-2264,  2287; 
Walker,  American  Law,  §  200; 
Clark,  Elementary  Law,  §§  220,  221; 
Tiedeman,  Real  Property,  §§  708-782; 
Kerr,  Real  Property,  §§  2285-2297; 
Pingrey,  Real  Property,  §§  1254-1263; 
Jones,  Real  Property,  §§  193-210; 
Rice,  Real  Property,  §  388; 
Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  416—445, 

502-512; 
Warvelle,  Real  Property,  pp.  170,  171,  335-353; 
Boone,  Real  Property,  §  324; 
Tiffany,  Real  Property,  §§  375-378. 


§  131.     Of  Title  by  Private  Grant:  the  Contents  of  Deeds. 

The  various  provisions  contained  in  deeds  may  be  dis- 
tributed into  seven  parts :  (1)  The  Premises,  describing  the 
parties,  the  consideration,  and  the  property:  (2)  The  Ha- 
bendum, describing  the  estate  granted;  (3)  The  Tenendum, 
describing  the  tenure  on  whicii,  and  the  uses  for  which,  the 
estate  is  to  be  held ;  (4)  The  Reddendum,  describing  the  matters 
reserved  to  the  grantor  out  of  the  estate  granted;  (5)  The 
Conditions,  describing  the  contingencies  on  which  the  estate 
granted  is  to  vest,  enlarge,  or  be  defeated;  (6)  The  Covenants, 
setting  forth  the  stipulations  of  the  parties  as  to  any  matters  re- 
lating to  the  estate;  (7)  The  Conclusion,  comprising  the  execu- 
tion, attestation,  and  acknowledgment.  Not  all  these  parts  are 
required  in  every  deed,  but  when  employed  they  should  occupy 
their  relative  positions. 

Rem.  In  the  premises  {\\v  j)arties  should  be  designated  by 
their  true  names  or  official  titles;  and  some  consideration, 
though  not  necessarily  the  true  one,  should  be  stated.  The 
description  of  the  property  conveyed  must  be  so  complete  and 
accurate  that  on  applying  it  to  the  property  its  precise  bound- 
aries can  be  ascertained.  The  tenendum  being  no  longer  u.sed 
to  denote  the  tenure  is  generally  combined  with  the  liahcudum 

lb 


146  ELEMENTARY  LAW  §  132 

in  the  phrase  "to  have  and  to  hold,"  followed  by  the  specifica- 
tion of  the  character  of  the  granted  estate.  The  reddendum,  or 
reservation,  creates  a  new  estate  in  the  grantor  and  must  there- 
fore contain  the  words  of  creation  which  would  be  necessary  if 
the  estate  were  conveyed  by  an  independent  deed.  An  exception 
differs  from  a  reservation  in  that  it  creates  nothing,  but  simply 
prevents  the  excepted  property  from  becoming  subject  to  the 
operation  of  the  deed,  and  therefore  is  a  part  of  the  description 
of  the  granted  property,  and  belongs  in  the  premises.  The  con- 
ditions may  be  framed  to  suit  the  parties,  provided  they  are  law- 
ful and  possible,  and  do  not  impose  undue  restraints  on  marriage 
or  alienation.  The  covenants  ordinarily  are  three:  first,  the 
covenant  of  seisin,  in  which  the  grantor  stipulates  that  he  has  a 
right  to  convey  the  property  as  the  deed  does  convey  it;  second, 
the  covenant  against  incumbrances,  in  which  he  stipulates  that 
the  estate  granted  is  subject  to  no  limitations  except  those  men- 
tioned in  the  deed ;  third,  the  covenant  of  warranty,  in  which  he 
stipulates  to  defend  at  his  own  cost  the  title  he  confers,  and,  if 
it  fails,  to  compensate  the  grantee  for  the  defects  in  the  estate. 
In  release  or  quitclaim  deeds  these  covenants  are  usually  omitted. 
In  leases  they  are  often  numerous  and  coupled  with  conditions 
forfeiting  the  estate.  In  the  conclusion  the  mode  of  signing, 
sealing,  attesting,  and  acknowledgment  must  conform  to  the 
local  law  of  the  State  where  the  property  is  situated,  or  the  deed 
will  be  void  as  a  conveyance,  though  it  may  be  sustained  and 
enforced  in  equity  as  a  contract  to  convey. 

Read:  2  Bl.  Com.,  pp.  298-304; 

4  Kent  Com.,  Lect.  lx\di,  pp.  460-480; 

Washburn,  Real  Property,  §§  2115-2120,  2265-2294,  2352-2414; 

Walker,  American  Law,  §  204; 

Harris  on  Identification,  §§  35-139; 

Andrews,  American  Law,  §  620; 

Tiedeman,  Real  Property,  §§  825-840,  843-846,  849-863; 

Kerr,  Real  Property,  §§  2323,  2324,  2331-2341; 

Pingrey,  Real  Property,  §§  1370-1376,  1382-1465; 

Jones,  Real  Property,  §§  213-262,  311-990; 

Rice,  Real  Property,  §§  378,  390; 

Warvelle,  Real  Property,  pp.  222-228,  247-249,  251-262,  271-287; 

Boone,  Real  Property,  §§  290,  291,  299-303  a,  308-318; 

Tiffany,  Real  Property,  §§  258-261,  382,  383,  387-393,  394-401. 

§  132.     Of  Title  by  Private  Grant :  the  Execution  of  Deeds. 

The  grantor  may  sign  and-  seal  the  deed  himself,  or  it  may 
be  done  by  a  bystander  in  his  presence  at  his  request,  or  if  he  is 
unable  to  write  he  may  make  his  mark  and  a  bystander  may 
add  a  written  explanation  which  completes  the  signature.    Any 


§  133  TITLE  TO   REAL   PROPERTY  147 

seal  may  be  adopted  for  the  time  being  as  his  own  by  the  grantor. 
The  execution  of  a  deed  in  the  absence  of  the  grantor  can  be 
effected  only  by  his  duly  authorized  attorney  in  fact,  whose  power 
of  attorney  should  also  be  in  writing  under  seal,  and  be  re- 
corded with  the  deed.  A  grantor  is  pres'umed  to  know  and 
understand  the  contents  of  his  deed  before  he  executes  it ;  and 
if  he  cannot  read  it  and  conceals  the  fact,  or  if  being  able  to 
read  it  he  neglects  to  do  so,  he  is  bound  by  the  deed,  iiowever  far 
it  may  depart  from  his  intention,  unless  some  fraud  has  been 
practised  upon  him. 

Rem.  When  the  deed  of  a  grantor  who  is  accustomed  to  write 
his  own  name  is  signed  for  him  by  a  bystander  it  is  advisable  to 
state  this  fact  and  the  reason  therefor  in  writing  in  connection 
with  the  signature.  When  the  signature  is  made  by  mark,  the 
mark  consists  of  a  cross  X  preceded  by  the  Christian  name  and 
followed  by  the  surname  of  the  grantor,  with  ^' Jiis  "  written  over 
the  mark  and  "mark"  below  it.  Signature  by  an  attorney  in 
fact  is  in  the  form  "-I.  B.  hij  C.  D.  his  aUomey  in  fact."  The 
seal  must  in  some  States  be  of  an  impressible  stibstance  like  wax 
or  wafer,  according  to  the  ancient  custom;  in  other  States,  a 
written  or  printed  scroll  containing  the  letters  L.  S.  or  the  letters 
alone,  or  an  embossed  design,  are  sufficient.  The  signatures  of 
the  witnesses  must  be  affixed  and  the  acknowledgment  be  made 
after  the  execution  by  the  grantor  is  comoleted. 

Read:  2  BL  Com.,  pp.  304-306; 

4  Kent  Com.,  Lcct.  lx\-ii,  pp.  452,  453; 
Washburn,  Real  Property,  §§  212.S-2142; 
Tiedeman,  Real  Property,  §§  804-806,  811; 
Kerr,  Real  Property,  §  2325; 
Pingrey,  Real  Property,  §§  1300-1310,  1317; 
Jone.s,  Real  Property,  §§  1000-1216; 
Warvelle,  Real  Property,  pp.  314,  353-359; 
Boone,  Real  Property,  §§  287  a,  294,  298; 
TifTany,  Real  Property,  §  408. 


§  133.     Of  Title  by  Private  Grant:  the  Delivery  of  Deeds, 

The  estate  created  by  a  deed  j)asscs  from  the  grantor  to  the 
grantee  by  the  delivery  of  the  deed,  and  hence  unless  it  is  delivered 
during  the  Ufe  of  the  grantor  it  will  be  of  no  effect.  A  deed  is 
not  delivered  until  it  is  j)laced  by  t\\v  grantor  within  the  per- 
manent control  of  the  grantee,  and  beyond  the  power  of  the 
grantor  to  recall  it.     Thus   to   IkukI   i(   to   tlic  grantee  for  in- 


148  ELEMENTARY  LAW  §  134 

spection,  or  for  a  search  of  title  or  the  opinion  of  counsel,  is  not 
delivery.  But  if  the  grantor  gives  it  to  the  grantee  or  his 
agent,  or  leaves  it  where  they  can  take  it,  with  intent  thereby 
to  make  delivery,  or  puts  it  on  record  for  the  grantee,  —  this 
completes  the  act  of  conveyance  and  perfects  the  estate  in  the 
grantee. 

Rem.  A  deed  may  be  entrusted  by  the  grantor  to  a  third 
party,  to  be  by  him  delivered  to  the  grantee  at  a  future  time  or 
upon  the  occurrence  of  a  contingent  event.  If  the  third  party  is 
the  agent  of  the  grantor  only  and  the  grantor  thus  has  power  to 
reclaim  and  destroy  the  deed,  no  step  toward  delivery  has  yet 
been  made.  But  if,  according  to  the  intention  of  the  parties,  the 
third  person  receives  the  deed  on  behalf  of  the  grantee,  the 
grantor  has  no  right  to  recall  it  although  the  title  does  not  pass 
to  the  grantee  until  the  delivery  of  the  deed  to  him,  and  mean- 
while the  possession  and  enjoyment  of  the  property  remain  in 
the  grantor.  A  deed  of  this  character  is  called  an  escroiv,  and 
when  it  is  delivered  to  the  grantee  his  title  under  it  will  relate 
back  to  the  date  of  its  execution,  if  such  was  the  evident  inten- 
tion of  the  grantor. 

Read:  2  Bl.  Com.,  p.  307; 

4  Kent  Com.,  Lect.  IxntI,  pp.  454-456; 

Washburn,  Real  Property,  §§  2143-2187; 

Tiedeman,  Real  Property,  §§  812-815; 

Kerr,  Real  Property,  §§  2327-2329; 

Pingrey,  Real  Property,  §§  1318-1328; 

Jones,  Real  Property,  §§  1217-1327; 

Rice,  Real  Property,  §  384 ; 

Warvelle,  Real  Property,  pp.  298-301,  302-304; 

Boone,  Real  Property,  §§  295,  296; 

Tiffany,  Real  Property,  §§  406,  407. 

§  134.     Of  Title  by  Private  Grant :   the  Interpretation  of  Deeds. 

A  deed  is  consinied  according  to  the  intent  of  the  parties  so 
far  as  this  can  be  ascertained  from  the  terms  of  the  deed  itself. 
In  interpreting  the  terms  of  the  deed  the  situation  of  the  parties, 
the  character  of  the  property,  the  circumstances  attending  the 
transaction,  and  the  general  purpose  which  the  parties  have  in 
view  may  be  considered.  Where  doubt  remains  after  all  re- 
course to  such  external  aid,  the  doubtful  terms  must  be  con- 
strued in  the  manner  most  favorable  to  the  grantee.  When 
different  statements  in  a  deed  are  contradictory,  the  first  state- 
ment prevails.     An  unintelligible  deed  is  absolutely  void. 


§  135  TITLE  TO   REAL   PROPERTY  149 

Rem.  Where  the  premises  imperfectly  describe  the  property 
conveyed,  those  boundaries  which  are  determined  by  fixed  monu- 
ments control  all  others;  if  no  fixed  monuments  are  mentioned, 
compass  courses  and  measured  distances  stand  next  in  authority; 
if  these  are  absent,  estimated  quantities  and  other  general  desig- 
nations may  be  followed.  The  grant  of  a  principal  article  of 
property  carries  its  incidental  necessary  privileges,  if  these  belong 
to  the  grantor ;  but  land  does  not  pass  as  incidental  to  land,  nor 
by  the  term  "appurtenances."  A  deed  absolute  in  form,  if  in- 
tended to  secure  a  debt,  is  construed  as  a  mortgage. 

Read:  2  Bl.  Com.,  pp.  379-381; 

4  Kent  Com.,  Lect.  Ixvii,  pp.  467,  468; 

Washburn,  Real  Property,  §§  2240,  2294-2351; 

Ticdeman,  Real  Property,  §§  827-829,  841,  842; 

Pingrey,  Real  Property,  §§  1377-1381; 

Jones,  Real  Property,  §§  381-409,  516-535,  1635-1664: 

Rice,  Real  Property,  §§  383,  385,  386; 

Warvelle,  Real  Property,  pp.  51,  52,  249-251,  315-317; 

Boone,  Real  Property,  §§  304-307. 

§  135.     Of  Title  by  Private  Grant :  the  Revocation  of  Deeds. 

A  deed  creating  or  transferring  an  estate  of  freehold,  having 
been  once  delivered,  cannot  he  revoked  and  the  estate  be  ex- 
tinguished by  the  destruction  of  the  deed  or  its  return  to  the 
grantor;  but  a  new  deed  must  be  executed  and  delivered  by 
the  grantee  to  the  grantor  for  that  purpose.  An  estate  less  than 
freehold  may  be  surrendered  and  extinguished  by  subsequent 
agreement  of  the  parties,  and  the  resumption  of  possession  by 
the  grantor,  without  a  formal  reconveyance.  INIoreover,  a 
court  of  equity  may  rescind  a  deed  for  fraud  or  mutual  mis- 
take, and  either  directly  decree  the  estate  to  be  in  the  grantor 
or  compel  the  grantee  to  transfer  it  to  him  by  a  deed. 

Rem.  It  may  sometimes  happen  that  the  parties  to  a  deed, 
in  ignorance  of  the  law,  agree  to  rescind  the  conveyance,  and 
without  making  a  new  deed  destroy  the  old  and  leave  the  prop- 
erty in  the  possession  of  the  grantor.  In  sucli  cases,  if  it  is  now 
too  late  to  ntake  a  reconveyance  or  the  grantee  should  refuse  to 
do  so,  tiic  courts  may  recognize  a  title  hy  estoppel  in  the  grantor 
as  against  the  formal  title  of  the  grantee.  Where  the  deeds  of 
persons  of  abnormal  status  are  voidable  on  that  account,  they 
may  be  avoided  when  the  legal  capacity  of  the  parties  is  restored. 
Read:  Washburn,  Real  Property,  §§  1907,  2182; 

Tiedeman,  Heal  Property,  §  741; 

Warvcllo,  Real  Property,  pp.  301,  302; 

Boone,  Real  Property,  §§  322,  323. 


150  ELEMENTARY  LAW  §  13(3 

§  136.     Of  Title  by  Private   Grant:  Voluntary  and  Fraudulent 
Conveyances. 

A  voluntary  conveyance  is  a  private  grant  without  valuable 
consideration.  It  may  be  made  to  a  near  relative  out  of  love 
and  affection,  or  to  a  stranger  without  any  consideration.  It 
is  valid  against  the  grantor,  and  unless  it  imperils  the  interests 
of  creditors  or  bona  fide  purchasers  is  valid  against  third  parties 
also.  A  fraudulent  conveyance  is  a  private  grant  made  by  the 
grantor  for  the  purpose  of  placing  the  property  beyond  the 
reach  of  his  creditors.  It  may  or  may  not  be  a  voluntary  con- 
veyance, but  if  it  is  on  valuable  consideration  it  is  not  void 
unless  the  grantee  knew  of  and  participated  in  the  fraudulent 
purpose  of  the  grantor.  The  remedy  of  creditors  against  volun- 
tary and  fraudulent  conveyances  is  by  proceedings  in  a  court 
of  equity  to  set  aside  the  conveyance  and  permit  the  levy  of  an 
execution  on  the  property.  A  subsequent  bona  fide  purchaser 
may  also  resort  to  equity  for  the  removal  of  the  cloud  which  the 
invalid  conveyance  casts  on  his  own  title,  and  for  an  injunction 
forbidding  the  grantees  under  it  to  assert  their  claim.  These 
remedies  are,  however,  unavailing  against  persons  who  in  good 
faith  and  for  valuable  consideration  have  purchased  the  property 
from  fraudulent  grantors  or  grantees,  —  the  law  regarding  the 
price  paid  as  assets  to  which  creditors  and  defrauded  pur- 
chasers  must  look  for  compensation. 

Rem.  The  rules  concerning  voluntary  and  fraudulent  con- 
veyances are  derived  mainly  from  statutes  enacted  in  the  13th 
and  27th  Elizabeth  (a.  d.  1670, 1684),  as  interpreted  by  the  courts 
of  England  and  the  United  States.  Concerning  the  right  of 
creditors  to  defeat  a  voluntary  conveyance  two  views  are  taken : 
(1)  that  any  outstanding  debt  against  the  grantor  at  the  date 
of  the  conveyance  renders  it  invalid  against  the  claim  of  that 
particular  creditor;  (2)  that  if  the  grantor,  at  the  date  of  the 
conveyance,  retained  in  his  own  hands,  and  within  the  reach 
of  process,  property  sufficient  to  pay  all  his  then  existing  debts 
the  voluntary  conveyance  will  be  valid  and  vest  a  good  title  in 
the  grantee.  In  reference  to  the  effect  of  a  voluntary  conveyance 
on  the  rights  of  a  subsequent  bona  fide  purchaser  two  opinions 
are  also  maintained:  (1)  that  the  voluntary  conveyance  is  vaUd 
against  the  purchaser  when  he  bought  the  property  with  notice 
of  the  prior  voluntary  grant ;  (2)  that  the  voluntary  conveyance 
is  invalid  against  the  purchaser  though  he  bought  the  property 


§  137  TITLE  TO  REAL   PROPERTY  151 

with  knowledge  that  such  a  conveyance  had  been  made.  Con- 
cerning the  effect  of  a  fraudulent  conveyance  on  the  rights  of 
creditors  two  doctrines  are  current  in  the  courts :  (1)  that  a 
fraudulent  conveyance  is  always  void  as  against  the  creditors 
whom  it  was  the  purpose  of  the  grantor  to  defraud,  whether  the 
indebtedness  then  existed  or  was  intended  to  be  subsequently 
incurred;  (2)  that  if  the  conveyance  was  fraudulent  as  against 
any  creditor  at  the  time  it  was  made,  it  is  void  as  against  all 
creditors  and  cannot  be  sustained  against  a  subsequent  indebted- 
ness not  contemplated  by  the  grantor  at  the  date  of  the  grant. 

Read:  2  Bl.  Com.,  pp.  296,  297,  notes; 

2  Kent  Com.,  Lect.  xxxviii,  pp.  440-443; 
4  Kent  Com.,  Lect.  Ixvii,  pp.  463,  464; 
Washburn,  Real  Property,  §§  2224-2228,  2272; 
Walker,  American  Law,  §§  201,  210; 
Tiedeman,  Real  Property,  §  802; 
Rice,  Real  Property,  §  392; 
Boone,  Real  Property,  §  289  a; 
Tiffany,  Real  Property,  §§  494-497; 

Bolles,  Important  English  Statutes,  p.  70,  Act  13th  Elizabeth;  p.  72, 
Act  27th  Elizabeth. 


§  137,     Of  Title  by  Devise:  Wills. 

Title  by  devise  is  the  title  by  wRich  a  person  acquires  an 
estate  in  real  property  at  the  death  of  its  former  owner,  by 
virtue  of  a  voluntary  disposition  of  it  in  his  favor  by  the  former 
owner.  The  means  by  which  this  disposition  is  made  is  called 
a  will.  A  vnll  of  lands  must  be  in  writing  and  be  signed  by  the 
testator.  At  the  time  of  making  it  the  testator  must  be  of  sufficient 
age  as  determined  by  the  local  law;  of  mental  capacity  enough 
to  understand  the  general  character  and  amount  of  his  property 
and  the  legal  effect  of  the  will  as  he  makes  it;  and  free  from 
coercion  or  undue  influence  on  the  part  of  other  persons.  It 
must  be  signed  by  the  testator,  and  declared  by  him  to  be  his 
will,  in  the  presence  of  the  prescribed  number  of  witnesses,  who 
must  subscribe  the  attestation  in  his  presence  and,  according  to 
the  laws  of  some  States,  in  presence  of  each  other.  The  local 
law  may  also  recjuire  it  to  be  sealed.  After  its  execution  a  will 
remains  ambulatory,  and  subject  to  change  or  revocation,  until 
the  death  of  the  testator.  Then  it  must  be  submitted  by  the 
executor  to  die  proper  Court  of  Probate,  whose  ajiproval  reiulers 
it  effective  to  transfer  the  estate  as  of  the  dati-  of  the  testator's 


15^  Elementary  law  §  138 

death.  Any  estate,  legal  or  equitable,  which  does  not  violate  the 
Rule  against  Perpetuities,  and  otherwise  is  not  unlawful,  may 
be  created  by  devise.  But  the  devisee  is  not  obliged  to  accept 
it,  though  if  clearly  beneficial  to  him  he  is  presumed  to  do  so; 
and  where  the  devise  is  conditioned  on  his  relinquishment  of 
other  rights,  he  may  elect  between  them  after  the  death  of  the 
testator. 

Rem.  The  modern  law  regarding  a  will  of  lands  rests  on  the 
Statute  of  Wills  enacted  in  32  Henry  VIII  (a.  d.  1540-41)  and  its 
judicial  interpretations.  Prior  to  the  Conquest  wills  of  lands 
had  been  employed  to  a  limited  extent.  Under  the  Norman 
feudal  system  they  seem  to  have  disappeared  except  by  special 
custom  in  a  few  localities.  When  the  doctrine  of  uses  was  estab- 
lished attempts  were  made  to  accomplish  the  same  purpose  by 
means  of  future  uses  created  to  take  effect  at  the  testator's  death. 
The  Statute  of  Uses  (a.  d.  1535)  rendered  these  no  longer  pos- 
sible. Five  years  afterwards  the  Statute  of  Wills  conferred  the 
power  to  devise  their  lands  upon  persons  holding  by  certain 
tenures,  and  this  power  was  extended  by  statute  at  the  Restora- 
tion of  Charles  II,  to  all  classes  of  tenures  and  all  species  of  real 
property.  These  Statutes  were  recognized  as  part  of  the  law  of 
the  American  colonies,  and  thence  with  certain  modifications  in 
detail  have  become  incorporated  in  our  law. 

Read:  2  Bl.  Com.,  pp.  373-379,  notes; 
4  Kent  Com.,  Lect.  Ixviii,  pp.  501-520; 
Washburn,  Real  Property,  §§  2415-2450,  2478,  note; 
Barbour,  Rights  of  Persons  and  Property,  pp.  340,  341; 
Walker,  American  Law,  §§  194,  195; 
Andrews,  American  Law,  §  621; 
Tiedeman,  Real  Property,  §§  872-885,  890a-893; 
Pingrey,  Real  Property,  §§  1466-1495,  1507,  1508; 
Jones,  Real  Property,  §§  1328-1591; 
Rice,  Real  Property,  §§  394-399; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  513-524; 
Warvelle,  Real  Property,  pp.  172-175,  420-428,  454-456; 
Boone,  Real  Property,  §§  325-334; 
Tiffany,  Real  Property,  §§  409-416; 
Rice,  American  Probate  Law,  pp.  98-137,  206-247; 
Page  on  Wills,  §§  1-311; 

Bolles,  Important  English  Statutes,  p.  40,  Statute  of  Wills;    p.   62, 
Statute  of  Wills  Extended. 

§  138.     Of  Title  by  Devise:  Revocation  of  Wills. 

A  will  may  be  revoked  by  the  testator  during  his  lifetime  either 
by  destroying  it,  or  by  making  a  later  will  containing  words 


§  139  TITLE  TO   REAL   PROPERTY  153 

of  revocation  or  by  new  devises  inconsistent  with  the  old,  or  by 
acts  affecting  the  property  which  render  it  impossible  for  the 
will  to  take  effect.  A  will  is  destroyed  when  the  testator,  being 
in  his  right  mind  and  with  intent  to  revoke  the  will,  tears  or 
burns  or  mutilates  it  in  a  part  essential  to  its  validity,  though 
the  rest  of  the  instrument  remains  intact.  A  later  will  may 
revoke  a  former  one  expressly  as  a  whole,  or  only  so  far  as  its 
provisions  are  incompatible  therewith.  A  partial  revocation  is 
usually  accomplished  by  a  codicil,  or  formal  addition  to  the  old 
will,  duly  executed  like  the  will  itself  and  making  such  changes 
as  the  testator  desires.  The  devise  of  specific  j)roperty  is  re- 
voked if  the  testator  alienates  that  property  before  his  death. 
A  will  once  revoked  may  be  revived  by  the  testator  by  re-execution 
or,  if  not  totally  destroyed,  by  republication  or  by  confirmation 
in  a  codicil  annexed  thereto. 

Rem.  Changes  in  the  condition  of  the  testator  himself,  and 
in  his  consequent  legal  relations,  have  sometimes  been  treated 
as  sufficient  to  revoke  a  will.  Thus  his  marriage,  and  the  birth 
of  a  child  for  whom  his  pre-existing  will  did  not  provide,  may 
work  a  revocation;  as  also  may  the  birth  of  subsecjuent  children 
unless  contemplated  by  the  former  will.  The  marriage  of  a 
feme  sole  revokes  her  prior  will,  without  the  birth  of  children,  so 
far  as  it  conflicts  with  the  rights  which  tlu>  law  confers  upon  her 
husband  by  the  marriage.  Contracts  made  by  a  testator  after 
the  execution  of  his  will,  and  enforcil)le  in  ecpiity  against  the 
property  devised,  also  operate  as  a  revocation  yro  tanto  of  the 
provisions  of  the  will. 

Read:  2  Bl.  Com.,  p.  376; 

4  Kent  Com.,  Lect.  lx\iii,  pp.  520-534; 

Washburn,  Real  Property,  §§  246cS-2477; 

Barbour,  Rifjlits  cA  Persons  and  Property,  pp.  345-347; 

Walker,  American  Law,  §  196; 

Tiedeman,  Real  Property,  s^§  886-890; 

Pinpjcy,  Real  Property,  §§  1496-1506,  1531-1536; 

Rire,  Real  Property,  §§  401,  402; 

Warvelle,  Real  Proi)erty,  j)p.  428,  429; 

Boone,  Real  Property,  ,?§  33;)-340; 

Tiffany,  Real  Property,  §§  417-420. 

§  139.     Of  Title  by  Devise:  Interpretation  of  Wills. 

A  will  is  construed  according  to  the  intent  of  the  testator,  so 
far  as  that  intent  is  lawful  and  can  be  ascertained.  Extrinsic 
facts  may  be  resorted  to  in  order  to  explain  the  language*  of  the 


154  ELEMENTARY  LAW  §  140 

will,  and  even  the  language  will  be  departed  from  if  it  is  manifest 
that  words  have  been  improperly  omitted  or  employed.  The 
construction  is  also  made  upon  the  entire  will  as  a  whole  so 
that,  if  possible,  eflFect  may  be  given  to  every  part  thereof. 
When  two  of  its  provisions  are  repugnant  to  each  other  the  last, 
being  the  latest  utterance  of  the  testator  on  the  subject,  will 
prevail.  So  far  as  the  provisions  of  the  will  relate  to  real 
property  they  are  interpreted  and  applied  according  to  the  lex 
rei  sitoB  or  law  of  the  State  where  the  property  is  situated. 

Rem.  The  latitude  allowed  in  the  interpretation  of  wills  in 
order  to  carry  out  the  intention  of  the  testator  is,  by  no  means, 
without  its  limitations.  Thus  a  testator  cannot  create  an  estate 
abolished  by  law,  or  one  never  known  to  the  law,  nor  confer 
rights  which  the  law  is  unable  to  protect.  Where  he  employs 
technical  legal  expressions  he  is  presumed  to  use  them  in  the 
legal  sense,  and  therefore  he  should  avoid  them  unless  he  under- 
stands their  meaning  and  intends  their  ordinary  effect.  The 
courts  cannot  prevent  the  mischief  caused  by  unskilled  convey- 
ancers, by  rescinding  or  departing  from  well-established  legal 
rules,  even  although  the  unfortunate  testator  has  now  no  power 
to  correct  their  mistakes. 

Read:  2  Bl.  Com.,  p.  381; 

4  Kent  Com.,  Lect.  Ixviii,  pp.  534-544; 

Washburn,  Real  Property,  §§  2451-2467; 

Barbour,  Rights  of  Persons  and  Property,  pp.  341-345; 

Walker,  American  Law,  §§  198,  199; 

Andrews,  American  Law,  §  845; 

Kerr,  Real  Property,  §§  339-390; 

Pingrey,  Real  Property,  §§  1509-1530,  1537-1541; 

Rice,  Real  Property,  §  400; 

Warvelle,  Real  Property,  pp.  429-454; 

Rice,  American  Probate  Law,  pp.  138-205; 

Page  on  Wills,  §§  456-709,  806-823. 


SECTION    III 

OF    PERSONAL    PROPERTY 

§  140.     Of  the  Nature  of  Personal  Property. 

Personal  property  comprises  all  those  subjects  of  ownership 
which  are  governed  by  the  Law  of  Personal  Property.  They 
possess  the  following  legal  characteristics:  (1)  They  are  reg- 
ulated, as  a  general  rule,  by  the  lex  doviicilii  of  their  owner; 


§  141  PERSONAL   PROPERTY  155 

(2)  They  can  be  conveyed  without  a  deed;  (3)  They  pass  on 
the  death  of  their  owner  intestate,  by  operation  of  law,  to  his 
executor  or  administrator  and  not  to  his  heir;  (4)  They  are 
not,  except  by  statute  or  in  pecuHar  cases,  recoverable  in  specie 
in  an  action  at  law  by  the  owner  when  he  has  been  deprived 
of  their  possession.  Whether  or  not  any  given  article  has  these 
characteristics,  at  any  given  place  and  time,  depends  upon  the 
current  local  law. 

Rem.  Articles  of  personal  property  are  often  called  chattels 
(from  catella,  cattle,  once  the  chief  species  of  movable  property) 
and  are  divided  into  Chattels  Real  and  Chattels  Personal.  A 
chattel  real  is  a  thing  which  in  itself  is  personal  but  which  is  so 
related  to  the  realty  as  to  be  governed  in  part  by  the  Law  of  Real 
Property.  To  this  class  belong  the  title  deeds  of  land,  heirlooms 
or  chattels  which  descend  with  the  estate,  and  estates  less  than 
freehold  where  the  estate  is  personal  though  the  property  is  real. 
A  chattel  personal  is  any  chattel  other  than  a  chattel  real,  whether 
it  be  movable  or  immovable,  corporeal  or  incorporeal.  To  this 
class  belong  all  tangible  objects  which,  in  contemplation  of  law, 
are  not  immovably  attached  to  land ;  all  transient  rights  in  or 
concerning  corporeal  personal  property;  all  rights  to  the  labor 
or  services  of  others ;  and  all  rights  to  demand  and  receive  pay- 
ments of  money  whether  arising  out  of  contracts  or  any  other 
form  of  obligation. 

Read:  2  Bl.  Com.,  pp.  384-388; 

2  Kent  Com.,  Lect.  xxxv,  pp.  340-342; 

Barbour,  Rights  of  Persons  and  Property,  pp.  580,  581,  590-593; 

Clark,  Elementary  Law,  §§  222,  224; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  13-16; 

Darlington,  Personal  Property,  pp.  1-29; 

Brantly,  Personal  Property,  §§  3,  5; 

Smith,  Personal  Property,  §§  17,  21; 

1  Schouler,  Personal  Property,  §§  1-10,  20,  21,  44-46,  94-99,  295- 

299;      * 
Kerr,  Real  Property,  §§  63,  64; 
Warvelle,  Real  Property,  p.  49; 
Boone,  Real  Property,  §  3. 


j,  141.     Of  Chattels  Personal :    Choses  in  Possession :   Choses  in 
Action. 

Chattels  personal  are  also  called  "choses"  (from  chose,  a 
thing),  and  are  divided  info  two  cla.sses:  (1)  Choses  in  Posses- 
sion;   anil    (2)  Choses   in    .\('ti(jn.      .\  rhosr   in  possession   is   a 


156  ELEMENTARY  LAW  §  141 

chose  which  is,  at  the  present  moment,  under  the  control  of  its 
owner.  This  control  may  be  actual  or  constructive ;  actual  when 
the  chose  is  in  the  hands  of  its  owner  or  of  his  servant,  or  in 
some  place  of  deposit  which  he  has  selected  for  it;  constructive 
when  though  not  within  his  immediate  physical  dominion  it  is 
either  in  the  hands  of  no  one,  like  lost  goods  or  stray  cattle,  or 
is  in  the  hands  of  some  one  from  whom  he  can  at  any  time 
reclaim  it,  like  a  borrower,  a  finder,  or  a  thief.  A  cliose  in 
action  is  a  chose  to  whose  enjoyment  the  owner  has  a  right,  but 
of  which  he  has  not  at  'present  either  the  actual  or  constructive 
control.  It  is  so  called  because  an  action,  or  suit  at  law  or 
equity,  may  become  necessary  to  reduce  it  to  possession.  The 
same  chose  may  be  at  the  same  time  a  chose  in  possession  as 
to  one  person,  and  a  chose  in  action  as  to  another.  Thus  an 
article  of  property,  entrusted  by  a  third  person  to  his  agent 
A,  to  be  delivered  immediately  to  B  the  true  owner,  is  a  chose 
in  possession  in  A  by  virtue  of  his  right  to  its  temporary  control, 
and  a  chose  in  action  in  B  because,  though  his  right  to  it  may 
be  asserted  against  A  at  any  moment,  he  may  be  compelled 
to  sue  A  in  order  to  obtain  it. 

Rem.  The  name,  cliose  in  action,  is  used  in  three  applica- 
tions:  (1)  To  denote  the  chose  itself  wliich  it  may  be  necessary 
to  bring  an  action  in  order  to  obtain ;  (2)  To  denote  the  right  of 
the  owner  to  the  control  of  the  chose ;  (3)  To  denote  the  docu- 
mentary evidence  of  the  existence  of  the  right.  Thus  a  sum  of 
money  due  on  a  promissory  note  is  a  chose  in  action,  since  a  suit 
may  be  needed  to  collect  it.  So,  also,  the  right  to  the  money  is  a 
chose  in  action  because  an  action  may  be  required  to  enforce  it. 
Again,  the  note  itself  by  which  the  existence  of  the  right  is  demon- 
strated, and  which  must  be  put  into  suit  in  order  to  collect  the 
money,  is  by  that  figure  of  speech  which  gives  to  a  visible  symbol 
the  name  of  the  thing  signified,  a  chose  in  action.  Some  confusion 
arises  out  of  this  multiplicity  of  meanings.  Frequently,  the  phrase 
is  used  in  the  second  sense,  denoting  the  right  which  is  to  be  as- 
serted by  the  action ;  when  used  in  the  other  senses  the  context 
generally  indicates  the  meaning  intended  by  the  writer.  Some 
authorities,  indeed,  identify  choses  in  action  with  incorporeal 
personal  property,  as  if  there  could  be  no  choses  in  action  other 
than  mere  incorporeal  rights;  but  the  two  concepts  are  really 
quite  distinct,  —  the  latter  denoting  the  permanent  essential 
character  of  the  chose,  the  former  only  its  temporary  legal 
relations. 


§§  142,  143      ESTATES   IN   PERSONAL   PROPERTY  157 

Read:  2  Bl.  Com.,  pp.  389,  397; 
2  Kent  Com.,  Lect.  xxxv,  p.  351; 

Barbour,  Rights  of  Persons  and  Property,  pp.  584-586; 
Clark,  Elementary  Law,  §  223; 

Darlington,  Personal  Property,  pp.  107-112,  179-191; 
Brantly,  Personal  Property,  §  6; 
Smith,  Personal  Property,  §§  22,  24; 
1  Schouler,  Personal  Property,  §§  11-19,  71-87. 


ARTICLE    I 

OF  ESTATES  IN  PERSONAL  PROPERTY 

§  142.     Of  the  Duration  of  Estates  in  Personal  Property. 

Estates  in  personal  property  resemble  estates  in  real  property 
in  reference  to  their  duration,  as  well  as  their  other  attributes, 
so  far  as  the  difference  in  the  nature  of  the  property  permits. 
Strictly  speaking  a  chattel,  not  being  inheritable,  cannot  become 
the  subject  of  an  estate  in  fee.  But  the  complete  and  exclusive 
ownership  of  a  chattel  is  closely  analogous  to  a  fee-simple 
estate,  and  clothes  its  owner  with  power  to  do  with  it  as  he  will. 
Estates  less  than  a  fee,  as  for  life,  for  years,  or  at  will,  may  be 
created  in  a  chattel  with  an  ultimate  reversion  to  the  owner  and 
his  representatives;  and  such  estates  are  governed  by  the  same 
general  rules  which  regulate  similar  estates  in  real  property. 

Rein.  The  principal  characteristic  of  complete  and  exclusive 
ownership  in  personal  property  is  the  right  to  make  a  final  dis- 
position of  it,  as  by  consuming  it  or  by  selling  it  and  expending  the 
proceeds.  This  test  is  frequently  applied  in  che  interpretation  of 
wills,  when  doubt  exists  whether  a  bequest  of  personal  property 
should  be  treated  like  a  fee,  or  like  a  limited  estate  with  subse- 
quent rights'in  other  legatees. 

Read:  Dwiglit,  Law  of  Persons  and  Property,  pp.  447,  448,  456,  457; 
Clark,  Elementary  Law,  §  225; 
Darlington,  Personal  Property,  pp.  278-301; 
Brantly,  Personal  Property,  §§  119-122. 

§  143.     Of     Absolute     and     Conditional     Estates     m     Personal 
Property. 

Estates  in  personal  property  may  be  limited  to  tak(>  effect 
as  absolute  or  as  conditional  estates;  and,  if  conditional,  upon 
condition    preccilent    or   subsequent.       These    conditions    mav 


158  ELEMENTARY   LAW  §  143 

arise  from  oontract,  or  may  be  imposed  on  the  estate  by  the 
nature  of  the  property  itself.  When  they  arise  from  contract 
they  are  interpreted  and  enforced  hke  similar  conditions  attached 
to  estates  in  real  property.  When  they  arise  from  the  nature 
of  the  property  the  estates  are  called  qualified  estates,  because 
they  depend  for  existence  on  some  quality  which  inheres  in  the 
property  itself. 

Rem.  The  principal  species  of  personal  property  in  which  a 
qualified  estate  alone  can  be  enjoyed  by  man  are:  (1)  The  ele- 
ments and  forces  of  nature ;  (2)  Animals  jeras  naturae ;  (3)  Dead 
human  bodies.  The  elements  and  forces  of  nature,  when  not  yet 
brought  under  human  control,  belong  to  no  one.  When  detached 
portions  of  them,  so  to  speak,  are  imprisoned  and  utilized  by 
man  they  constantly  tend  to  escape  from  confinement  and  re- 
turn to  their  natural  condition.  Property  rights,  therefore,  can 
reside  in  them  only  while  they  remain  in  the  actual  or  constructive 
possession  of  the  person  who  claims  them,  and  when  this  posses- 
sion ceases  all  vestiges  of  ownership  disappear.  Animals  ferce 
naturoe  are  distinguished  from  domestic  animals  in  which  an 
absolute  estate  can  be  enjoyed,  by  their  disposition  to  depart  from 
their  owners  and  not  to  return  unless  forcibly  reclaimed.  This 
distinction  is  drawn  between  species  of  animals,  not  between  in- 
dividuals, —  some  species  being  legally  domestic,  and  others 
legally  wild.  Animals  /era?  naturoe  belong  to  no  one  except  the 
general  public,  unless  they  are  in  actual  captivity  or  under  con- 
structive control  like  fish  in  private  ponds  or  birds  while  nesting 
on  private  land ;  and  when  they  escape  from  captivity  or  construc- 
tive control  are  again  public  property,  and  may  be  taken  by  any 
one  subject  to  the  provisions  of  local  laws.  Dead  Iniman  bodies 
were  once  regarded  as  not  subject  to  property  rights.  Under 
modern  authorities  a  corpse  may  belong  to  a  surviving  wife  or 
husband  or  next  of  kin  for  purposes  of  interment,  and  after  burial 
becomes  the  property  of  the  owner  of  the  land  in  which  it  is  depos- 
ited. Portions  of  human  bodies,  preserved  for  scientific  purposes, 
may  by  owned  like  other  chattels. 

Read:  2  Bl.  Com.,  pp.  389-396; 

2  Kent  Com.,  Lect.  xxxv,  pp.  347-350; 

Barbour,  Rights  of  Persons  and  Property,  pp.  581-584; 

Dwight,  Law  of  Persons  and  Property,  pp.  449-456; 

Tiffany,  Real  Property,  §§  271,  272; 

Darlington,  Personal  Property,  pp.  29-32; 

Brantly,  Personal  Property,  §§  74-84,  97; 

Smith,  Personal  Property,  §  4; 

1  Schouler,  Personal  Property,  §§  48-52; 

Perley,  Mortuary  Law,  pp.  20-210. 


§§  144,  145      ESTATES   IN   PERSONAL   PROPERTY  159 

§  144.     Of  Present  and  Future  Estates  in  Personal  Property. 

Estates  in  personal  property  may  be  ereated  to  take  effect 
in  the  future  as  reversions,  remainders,  or  executory  interests, 
unless  the  use  of  the  property  by  the  present  particular  tenant 
involves  its  entire  consumption.  Such  estates  are  governed,  so 
far  as  the  nature  of  the  property  allows,  by  the  same  rules  as 
similar  estates  in  real  property.  But  if  the  property  is  perishable 
it  is  generally  held  to  be  the  duty  of  the  particular  tenant  to 
convert  it  into  money  and  invest  the  proceeds,  taking  the  income 
for  himself  and  holding  the  principal  for  the  benefit  of  the 
remainderman  or  reversioner. 

Rem.  The  particular  tenant  of  personal  property  is  liable  to 
the  holder  of  the  future  estate  for  waste,  either  actual  or  permis- 
sive; and  the  latter  may  invoke  the  aid  of  a  court  of  equity  to 
protect  his  rights,  even  if  necessary  by  the  appointment  of  a 
receiver  to  manage  the  property  in  the  interest  of  all  its 
owners. 

Read:  2  Bl.  Com.,  p.  398; 

2  Kent  Com.,  Lect.  xxxv,  pp.  3.')2-354; 

Barbour,  Rights  of  Persons  and  Property,  pp.  586,  587; 

Dvviglit,  Law  of  Persons  and  Property,  pp.  460-467; 

Darlington,  Personal  Property,  pp.  33-35; 

Brantly,  Personal  Property,  §§  110-118: 

Smith,  Personal  Property,  §  25; 

1  Schouler,  Personal  Property,  §§  134-153. 

§  145.     Of  Joint  and  Several  Estates  in  Personal  Property. 

Estates  in  personal  property  may  be  held  in  severalty,  joint 
tenancy,  entirety,  partnership,  or  in  common,  according  to  the 
terms  in  which  the  estate  is  created  or  the  operation  of  law 
upon  the  circumstances  out  of  which  it  arises.  Here  also  the 
rules  governing  analogous  estates  in  real  property  are  applied, 
as  far  as  practicable.  Ordinarily  in  all  co-tenancies  of  personal 
property  the  possession  of  one  co-tenant  is  the  possession  of  all, 
and  conse({uently  neither  can  reclaim  its  possession  from  the 
others  by  proceedings  <it  law.  This  doctrine,  where  the  article 
is  indivisible  and  incapable  of  joint  use  by  the  tenants,  gives 
to  the  actual  possessor  an  ine(|uitable  advantage  over  his  co- 
tenants  which  can  be  remedied  only  by  a  partition. 

Rem.  Any  co-tenant  of  an  estate  in  personal  property  has  a 
right  to  its  partition,  whore  the  property  is  it.self  divisible.     If 


160  ELEMENTARY   LAW  §  146 

it  is  indivisible,  a  court  of  equity  may  direct  it  to  be  sold  and  the 
proceeds  distributed  among  the  tenants  according  to  their  re- 
spective shares;  or  if  this  be  inexpedient  its  alternate  use  may 
be  decreed,  or  any  other  method  of  enjoyment  ordered  which  will 
secure  to  all  the  parties  their  equitable  rights. 

Read:  2  Bl.  Com.,  p.  399; 

2  Kent  Com.,  Lect.  xxxv,  pp.  350,  351 ; 

Barbour,  Rights  of  Persons  and  Property,  pp.  725-727; 

Dwight,  Law  of  Persons  and  Property,  pp.  458-460; 

Walker,  American  Law,  §  151 ; 

Darlington,  Personal  Property,  pp.  302-314; 

Brantly,  Personal  Property,  §§  99-109; 

Smith,  Personal  Property,  §§  26-31; 

1  Schouler,  Personal  Property,  §§  154-167. 


Article  II 

OF    TITLE    TO    ESTATES    IN    PERSONAL    PROPERTY 

§  146.     Of  the  Acquisition  of  Estates  in  Personal  Property. 

Estates  in  personal  property  may  be  acquired  either  by  opera- 
tion of  law,  or  by  the  sole  act  of  the  former  or  of  the  present 
owner,  or  by  the  joint  act  of  the  present  and  the  former  owner. 
Title  bl/  operation  of  law  is  of  five  species:  (1)  Title  by  Pre- 
rogative; (2)  Title  by  Forfeiture;  (3)  Title  by  Succession; 
(4)  Title  by  Marriage;  (5)  Title  by  Judicial  Decree.  Title  by 
the  sole  act  of  the  former  or  of  the  present  oumer  is  of  four  species: 
(1)  Title  by  Occupancy;  (2)  Title  by  Accession;  (3)  Title 
by  Confusion ;  (4)  Title  by  Creation.  Title  by  the  joint  act  of 
the  vresent  and  the  former  oioner  is  of  three  kinds:  (1)  Title 
by  Gift ;    (2)  Title  by  Testament ;    (3)  Title  by  Contract. 

Rem.  Most  of  the  rules  of  law  which  are  peculiar  to  personal 
property  relate  to  the  titles  by  which  it  may  be  acquired.  Of 
these  titles  many  are  so  wide  in  extent  and  copious  in  detail  as  to 
form  the  subjects  of  separate  Departments  of  the  Law;  as  Title 
by  Creation  is  the  subject  of  Patent  and  Copyright  Law ;  Title  by 
Succession  and  Title  by  Testament  are  the  subjects  of  Probate 
Law;  and  Title  by  Gift  and  Title  by  Contract  are  the  subjects 
of  the  Law  of  Contracts.  For  this  reason  few  treatises  of  any 
magnitude  on  personal  property  have  been  prepared  and  pub- 
lished, —  the  legal  student  finding  the  material  for  his  investi- 
gallons  in  the  great  text-books  and  leading  cases  pertaming  to 
these  Departments  of  the  Law. 


§  147  TITLE  TO  PERSONAL  PROPERTY  161 

Read:  Dwiojht,  Law  of  Persons  and  Property,  p.  468; 
Clark,  Elementary  Law,  §  226; 
Darlington,  Personal  Property,  pp.  357-367; 
Smith,  Personal  Property,  §  32; 
2  Schouler,  Personal  Property,  §§  2-4. 


§  147.     Of  Title  by  Prerogative. 

Title  by  -prerogative  is  the  title  hy  \\^ich  the  State  acquires 
an  estate  in  private  personal  property  which  may  be  needed 
for  public  use,  or  over  which  all  former  owners  have  perma- 
nently lost  their  dominion.  By  a  right  akin  to  that  of  eminent 
domain  the  government  may  take  any  species  of  personal  prop- 
erty, except  coin  of  the  realm,  whenever  it  may  be  required  for 
public  use,  upon  making  due  compensation  to  the  owner.  Per- 
sonal property  over  which  former  owners  have  entirely  lost  their 
dominion,  such  as  goods  captured  from  an  enemy  in  time  of  war, 
or  thrown  away  by  a  thief  in  his  flight,  or  hidden  under  ground, 
or  lost  at  sea,  or  washed  upon  the  shore,  if  no  oioner  can  be  found, 
and  straying  cattle  which  no  one  reclaims,  vests  in  the  State  by 
the  same  title,  and  may  either  be  up{)ropriated  to  public  use  or 
distributed  to  individuals  under  the  provisions  of  local  laws. 
Articles  accidentally  lost  on  land,  and  which  the  owner  may 
possibly  trace  and  recover,  do  not  change  their  ownership  by 
being  found  and  held  by  other  persons:  but  remain  not  only 
under  the  dominion  but  in  the  constructive  pos.session  of  their 
owner  until  by  some  act  or  neglect  on  his  part,  or  in  pursuance 
of  some  local  law,  his  right  to  their  recovery  lapses  and  the 
actual  po.ssessor  becomes  entitled  to  retain  them. 

Rem.  The  right  of  taxation,  like  the  foregoing  title,  rests  upon 
the  sovereign  prerogative  of  the  State,  but  does  not,  like  that 
title,  result  directly  in  the  accpiisition  by  the  State  of  a  specific 
article  of  personal  projx'rty  Under  this  right  the  government 
may  impose  burdens  upon  tW-  subject  to  any  amount  and  under 
any  form  by  which  an  obligjition  to  pay  money  may  be  created; 
but  the  primary  result  is  a  d?bt  due  by  the  subject  to  the  State 
which  may  l)c  collected  by  process  against  his  ])crson  or  jiroperty, 
and  for  failure  to  pay  which  the  jiropcrty  itself  may  be  forfeited 
to  the  State.  Hence  the  title  to  specific  j)ro])crty  which  the  State 
acquires  as  the  remote  result  of  taxatioti  is  rather  a  title  by  for- 
feiture, or  a  title  by  judicial  decree  or  execution,  than  a  true  title 
by  prerogative. 

11 


162  ELEMENTARY  LAW  §§  148,  149 

R^ad:  1  Bl.  Com.,  pp.  290-299; 
2  Bl.  Com.,  pp.  408-411; 

1  Kent  Com.,  Lect.  v,  p.  101; 

2  Kent  Com.,  Lect.  xxxvi,  pp.  356-360; 

Dwight,  Law  of  Persons  and  Property,  pp.  469-472,  557-559; 
Walker,  American  Law,  §§  51,  81; 
Andrews,  American  Law,  §§  215-236; 
Clark,  Elementary  Law,  §  229; 
2  Schouler,  Personal  Property,  §§  9-13,  17,  23; 
BoUes,  Important  English  Statutes,  p.  10,  Act  concerning  Wrecks  of 
the  Sea. 

\  148.     Of  Title  by  Forfeiture. 

Title  by  forfeiture  is  the  title  by  which  a  person  acquires  an 
sstate  in  personal  property,  as  a  legal  consequence  of  some 
tvrongful  action  or  omission  on  the  part  of  its  former  owner. 
By  this  title  fines  and  penalties  for  crime,  contraband  merchan- 
dise and  smuggled  goods,  and  in  some  cases  the  implements 
of  crime  when  taken  from  the  criminal,  vest  in  the  government. 
Conditional  estates  in  chattels  may  also  be  forfeited  by  breach 
of  the  condition,  and  in  consequence  the  chattels  then  return, 
discharged  of  the  conditional  estate,  into  the  possession  of  their 
original  owner. 

Rem.  When  a  chattel  is  loaned  or  rented  by  its  owner  to  an- 
other person  for  a  particular  purpose,  or  the  chattel  itself  requires 
special  care  in  its  preservation  or  mode  of  use,  the  borrower  or 
hirer  holds  it  upon  the  implied  condition  that  he  will  use  it  for 
no  other  purpose,  and  will  devote  to  it  the  necessary  care.  On 
his  violation  of  this  condition  his  right  to  retain  the  chattel  ceases, 
and  the  owner  may  at  any  moment  reassume  possession. 

Read:  2  Bl.  Com.,  pp.  420,  421; 

2  Kent  Com.,  Lect.  xxxvii,  pp.  385-387; 
Dwight,  Law  of  Persons  and  Property,  pp.  555-557; 
Clark,  Elementary  Law,  §  228; 
Smith,  Personal  Property,  §§  62-65. 

§  149.     Of  Title  by  Succession. 

Title  by  succession,  is  the  title  by  which  one  person,  by  opera- 
tion of  law,  acquires  an  estate  in  personal  property  formerly  be- 
longing to  another,  as  his  personal  representative  or  successor. 
Personal  property,  upon  the  death  of  its  oumer  intestate,  does 
not  descend  to  the  heir  like  the  real  property,  but  vests  first  in 
un  administrator,  appointed  by  a  court  of  probate,  who  collects 


§  150  TITLE  TO   PERSONAL  PROPERTY  163 

the  assets  of  the  decedent  and  pays  his  debts,  and  then  delivers 
the  surplus  to  those  persons  whom  the  law  designates  as  the 
successors  or  distributees.  These  distributees  may  or  may  not 
be  the  same  persons  as  the  heirs  of  the  realty,  but  while  the 
title  of  the  heirs  takes  effect  at  the  death  of  the  ancestor,  that  of 
the  successors  or  distributees  commences  only  when  the  dis- 
tribution is  made. 

Rem.  Title  by  succession  is  also  the  title  by  which  the  subse- 
quent members  of  corporations  aggregate,  other  than  stock  cor- 
porations, acquire  their  right  to  enjoy  their  corporate  privileges 
as  the  original  members  disappear.  The  corporation  itself  never 
dies,  but  as  vacancies  occur  and  are  filled  by  election  or  other- 
wise the  new  members  succeed  to  the  places  and  powers  of  the 
old.  In  stock  corporations,  however,  where  the  rights  of  the 
members  are  mainly  property  rights,  consisting  in  the  right  to 
dividends  and  the  right  to  a  share  in  the  ultimate  surplus  of  the 
corporate  property,  the  title  of  new  members  arises  from  their 
acquisition  of  shares  of  stock  by  purchase  or  bequest,  and  is 
therefore  a  title  by  contract  or  by  testament,  though  in  one  point 
of  view  it  may  be  a  title  by  succession  also.  The  devolution  of 
rights  to  the  successive  individuals  who  constitute  a  corporation 
sole  is  not  the  occasion  of  a  new  title,  but  a  continuation  of  the 
rights  in  the  same  corporation  by  virtue  of  the  title  by  which  they 
were  originally  acquired. 

Read:  2  BI.  Com.,  pp.  430-433,  515-520; 
2  Kent  Com.,  Lect.  xxxvii,  pp.  420-436; 
Clark,  Elementary  Law,  §§  228,  231-235; 
Darlington,  Personal  Property,  pp.  331-339; 
Smith,  Personal  Property,  §§  66,  67,  70. 
« 

§  150.     Of  Title  by  Marriage. 

Title  by  marriage  is  the  title  by  which  husbands  and  wives 
acquire  estates  in  the  personal  property  of  one  another  as  a 
legal  consequence  of  their  entrance  into  the  marriage  relation. 
Prior  to  recent  statutes  the  entire  personal  estate  of  the  wife  was 
vested  by  the  marriage  in  the  husband.  Her  clioses  in  possession 
became  absolutely  and  immediately  his.  Her  choses  in  action 
became  his  if  reduced  by  him  to  possession,  or  in  any  other  way 
converted  by  him  to  his  separate  use.  Her  chattels  real  he  could 
dispose  of  at  his  pleasure,  or  they  might  be  taken  for  his  debts. 
The  rents  and  profits  of  her  real  estate  were  also  his,  as  well  as 
all  the  avails  of  her  personal  skill  and  labor.    The  wife,  on  the 


164  ELEMENTARY    LAW  §  151 

other  hand,  acquired  no  rights  in  the  personal  property  of  the 
husband  during  the  coverture,  except  to  those  articles  of  clothing 
and  ornament  called  her  paraphernalia,  which  were  purchased 
by  him  for  her  use.  If  he  died  intestate,  during  the  coverture, 
she  became  entitled  to  succeed  to  a  certain  portion  of  his  per- 
sonal estate.  In  most  of  our  States  these  rules  have  been  con- 
siderably modified  by  statute. 

Rem.  Under  the  rules  above  stated  the  property  advantages 
arising  from  a  marriage  accrued  almost  entirely  to  the  husband. 
With  the  growing  recognition  of  a  wife  as  possessing  some  legal 
personality,  distinct  from  her  husband,  there  is  a  manifest  ten- 
dency to  treat  both  wife  and  husband  as  retaining  in  their  own 
individual  ownership  all  the  personal  property  belonging  to  them 
at  their  marriage ;  to  regard  the  husband  as  a  mere  trustee  for  the 
wife  as  to  any  of  her  chattels  which  may  come  under  his  control ; 
and  to  consider  such  accumulations  of  their  married  lifetime,  as 
may  remain  at  the  death  of  either,  as  a  quasi-romrnunity  property 
in  which  the  survivor  is  entitled  to  a  substantial  share.  How  far 
these  tendencies  have  been  developed  in  any  given  State  its  local 
statutes  will  disclose. 

Read:  2  Bl.  Com.,  pp.  433-436,  515; 

2  Kent  Com.,  Lect.  xxviii,  pp.  273-284; 
Clark,  Elementary  Law,  §  228; 
Darlington,  Personal  Property,  pp.  340-356; 
Smith,  Personal  Property,  §§  75-77. 

§  151.     Of  Title  by  Judicial  Decree. 

Title  by  judicial  decree  is  the  title  by  which  a  person  acquires 
an  estate  in  personal  property  as  the  direct  result  of  the  judg- 
ment of  a  competent  court.  The  title  of  a  victorious  plaintiff 
to  the  damages  awarded  him  in  an  action  of  tort,  or  to  the  costs 
and  penalties  in  any  action,  is  a  title  by  judicial  decree,  since 
the  right  to  these  accrues  to  him  by  virtue  of  the  judgment 
alone  and  not  through  any  antecedent  obligation  or  subsequent 
procedure.  When  the  owner  of  personal  property,  which  has 
been  unlawfully  taken  and  detained  by  another  person,  recovers 
compensation  measured  by  the  value  of  the  property  in  an 
action  against  the  wrongdoer,  if  the  wrongdoer  satisfies  the 
judgment  he  thereby  becomes  the  owner  of  the  property  as 
the  direct  result  of  the  judgment  and  its  satisfaction.  Upon 
the  involuntary  bankruptcy  of  a  tradesman  his  personal  estate  is 


§  152  TITLE  TO   PERSONAL   PROPERTY  165 

transferred  to  his  assignee  by  the  judicial  action  which  decides 
that  he  is  a  bankrupt  and  appoints  the  assignee.  The  adminis- 
trator of  a  deceased  intestate  becomes,  for  the  time  being,  the 
owner  of  the  personal  property  of  the  deceased  through  the 
decree  of  the  court  of  probate  under  whose  direction  he  settles 
the  estate.  A  guardian  designated  by  a  court  derives  his  title 
to  the  chattels  of  the  ward  from  the  action  of  the  court  by  which 
he  is  appointed.  The  title  of  a  receiver  to  the  assets  in  his  charge, 
or  of  a  divorced  woman  to  her  alimony,  are  other  instances  of  the 
same  title. 

Rem.  Cases  frequently  arise  where  a  prior  title  is  rendered 
impregnable  by  judicial  action,  or  where  a  new  title  is  acquired 
as  one  of  its  indirect  results.  An  example  of  the  former  is  a  title 
by  a  contract  which  can  be  enforced  only  by  recovering  judgment 
against  the  promisor;  in  which  case,  though  the  former  obliga- 
tion is  merged  in  the  judgment,  no  new  property  rights  are  thereby 
vested  in  the  plaintiff,  the  judgment  and  its  satisfaction  serving 
merely  to  effectuate  his  original  title.  An  instance  of  the  latter 
appears  in  the  sale  of  personal  property  upon  an  execution ; 
where,  though  the  execution  sale  is  one  of  the  consequences  of 
the  judgment,  the  title  of  the  purchaser  arises  from  the  sale,  and 
may  be  valid  even  if  the  judgment  should  be  subsequently  set 
aside.  Such  cases  must  be  carefully  distinguished  from  the  true 
title  by  judicial  decree,  which  is  governed  by  rules  of  its  own,  may 
be  more  or  less  universal  as  to  the  persons  whom  it  binds,  and 
stands  or  falls  with  the  validity  of  the  judgment  on  which  it 
rests. 

Read:  2  Bl.  Com.,  pp.  4.36-439,  485,  486; 

2  Kent  Com.,  Lect.  xxwii,  pp.  387-389,  399; 

Barbour,  Rif^hts  of  Persons  and  Property,  pp.  663-665; 

Dwight,  Law  of  Persons  and  Property,  pp.  560-581 ; 

Walker,  American  Law,  §  55; 

Andrews,  American  Law,  §§  285-295; 

Clark,  Elementary  Law,  §  229; 

Darlington,  Personal  Property,  pp.  165-167; 

Smith,  Personal  Property,  §§  68,  69,  71-74. 

§  152.     Of  Title  by  Occupancy. 

Title  hij  occupanri/  is  tlie  title  whereby  a  person  acquires  an 
estate  in  personal  property,  of  which  he  takes  exclusive  possession 
at  a  time  when  it  legally  belongs  to  no  one.  Thus  animals 
feroe  naturce,  roaming  at  large  on  public  land  or  in  public 
waters,  may  become  the  property  of  one  who  caj)tures  them. 


166  ELEMENTARY  LAW  §  153 

So  also  the  unconfined  forces  of  nature  may  be  appropriated  by 
any  person  who  can  control  them ;  and  chattels,  abandoned  on 
the  land  by  their  real  owner,  may  be  devoted  to  his  own  use 
by  the  finder,  unless  by  title  by  prerogative  they  are  vested  in 
the  State. 

Rem.  A  finder  of  goods  accidentally  lost  or  misplaced  by  their 
owner,  and  which  he  would  reclaim  if  he  discovered  them,  ac- 
quires no  title  to  them ;  but  on  the  contrary,  if  he  assumes  any 
control  over  them  whatever,  he  incurs  certain  obligations  toward 
them  and  their  owner  without  any  assurance  of  benefit  to  himself. 
He  is  obliged  to  'protect  the  property  and  to  take  proper  steps  to 
discover  the  otimer  and  restore  it  to  him,  as  prescribed  by  local 
statutes ;  and  failing  these  he  is  liable  to  be  sued  for  conversion 
or  prosecuted  for  theft.  But  having  taken  these  steps  he  may  law- 
fully retain  the  property  till  the  owner  appears ;  and  should  the 
owner  never  appear  it  will  become  practically  though  not  legally 
the  property  of  the  finder. 

Read:  2  Bl.  Com.,  pp.  400-404; 

2  Kent  Com.,  Lect.  xxxvi,  pp.  355-360; 

Barbour,  Rights  of  Persons  and  Property,  pp.  594-598; 

Dwight,  Law  of  Persons  and  Property,  pp.  472-481 ; 

Walker,  American  Law,  §  179; 

Clark,  Elementary  Law,  §  227 ; 

Darlington,  Personal  Property,  pp.  35-38; 

Brantly,  Personal  Property,  §§  123-149; 

Smith,  Personal  Property,  §§  33-37; 

2  Schouler,  Personal  Property,  §§  6-8,  14-16,  18-22,  26. 

§  153.     Of  Title  by  Accession. 

Title  by  accession  is  the  title  by  which  the  owner  of  existing 
personal  property  acquires  an  estate  in  such  other  personal 
property  as  is  naturally  or  artificially  produced  by  or  added 
to  his  own.  Thus  the  progeny  of  animals  belong  to  the  person 
who  owned  or  had  a  definite  leasehold  interest  in  the  mother 
when  the  progeny  were  born.  Materials  of  one  person  inno- 
cently incorporated  into  a  structure  owned  by  another,  who 
furnished  the  labor  and  the  principal  materials,  become  the 
property  of  the  latter  when  inseparable  from  the  structure,  al- 
though he  may  be  required  to  pay  their  value  to  their  former 
owner.  The  chattel  of  one  person,  if  converted  by  the  skill  of 
another  into  an  article  of  different  species  or  a  higher  nature, 
belongs  to  the  converter  if  he  acted  in  good  faith,  upon  making 


§  154  TITLE  TO  PERSONAL  PROPERTY  167 

compensation  to  the  owner.  But  one  who  wrongfully  and 
knowingly  appropriates  to  his  own  structures  the  materials  of 
other  persons,  or  expends  his  skill  and  labor  upon  their  chattels 
gains  no  advantage,  but  rather  loses  what  he  has  expended  and 
may  also  be  liable  in  a  suit  for  damages  for  the  conversion. 

Rem.  Whether  or  not  an  article  or  structure  is  that  principal 
thing,  which  draws  after  it  tiic  owncrsjiip  of  property  added 
thereto,  depends  not  upon  its  size,  its  individual  nature,  or  its 
pecuniary  value;  but  rather  upon  its  legal  relation  to  the  entire 
property  as  that  which  gives  to  it  those  essential  characteristics 
which  determine  its  identity.  Thus  the  keel  is  the  principal 
thing  in  a  ship,  the  foundation  in  a  house,  the  body  and  running 
gear  in  a  wagon,  the  operating  mechanism  in  a  machine,  the 
fitted  fabric  in  a  garment.  The  same  rule  applies  as  between  the 
labor  expended  on  an  article  and  the  original  article  itself;  if 
the  labor  changes  the  identity  the  labor  is  the  principal  thing  — 
otherwise  not.  Thus  a  picture  painted  on  the  canvas  of  another, 
the  construction  of  an  article  of  furniture  out  of  the  lumber  of 
another  or  of  a  coat  out  of  the  cloth  of  another,  changes  the  own- 
ership of  the  canvas,  the  lumber,  and  the  cloth ;  the  picture,  the 
furniture,  and  the  coat  being  new  articles  of  a  higher  nature,  al- 
though the  original  materials  may  still  be  traceable  in  them. 

Read:  2  Bl.  Com.,  p.  404; 

2  Kent  Com.,  Lect.  xxxvi,  pp.  360-364; 
Barbour,  Rights  of  Persons  and  Property,  pp.  600,  601 ; 
Dwight,  Law  of  Persons  and  Property,  pp.  481-486; 
Clark,  Elementary  Law,  §  227; 
Brantly,  Personal  Property,  §§  85,  86,  150-166; 
Smith,  Personal  Property,  §§  38-41; 
•  2  Schouler,  Personal  Property,  §§  26-41. 


§  154.     Of  Title  by  Confusion. 

Title  by  confusion  is  the  title  by  which  the  owner  of  one  article 
of  personal  property  actjuires  an  estate  in  such  other  articles 
of  personal  j)roperty  as  by  the  wrongful  act  of  their  owner  are 
indistinguishably  commingled  with  his  own.  Chattels  of  the 
same  species  may  be  commingled  by  accident,  by  consent,  or 
by  the  wrongful  act  of  a  third  party;  and  in  these  cases  the 
rrmss  will  he  divided  between  the  owners,  either  by  severance  of 
their  particular  chattels,  or  by  allotting  to  each  his  proportionate 
share  of  the  whole.  But  where  the  admixture  has  resultetJ  from 
the  wrongful  act  of  one  of  the  owners  the  loss,  if  any,  must  faU 


168  ELEMENTARY   LAW  §  155 

on  him.  If  the  property  can  be  separated,  or  proportionately 
divided,  this  must  be  done  at  his  expense ;  if  not,  the  entire  mass 
belongs  to  the  innocent  owner  without  compensation  to  the 
other  for  the  increase  thus  obtained. 

Rem.  From  statements  found  in  some  authorities  it  might  be 
inferred  that  any  wrongful  mixture  of  goods  by  one  of  the  owners 
ipso  facto  forfeited  his  portion  to  the  other.  But  the  generall}! 
recognized  doctrine  requires  that  to  produce  this  effect  the  goods 
commingled  must  be  indistinguishable;  and  that  when  distin- 
guishable the  separation  shall  be  made  at  the  cost  of  the  wrong- 
doer. Title  by  confusion  does  not  arise  where  the  mingled  goods 
are  of  different  species,  like  corn  and  coal,  or  scraps  of  brass 
and  iron.  Here  the  separation  is  possible  and  may  be  made  by 
the  owner  at  the  expense  of  the  wrongdoer,  who  is  also  liable  in 
damages  for  the  trespass  or  conversion. 

Read:  2  Bl.  Com.,  p.  405; 

2  Kent  Com.,  Lect.  xxxvi,  pp.  364,  365; 
Barbour,  Rights  of  Persons  and  Property,  pp.  598-600; 
Dwight,  Law  of  Persons  and  Property,  pp.  486.  487; 
Brantly,  Personal  Property,  §§  167-175; 
\  2  Schouler,  Personal  Property,  §§  42-53. 

J  156.     Of  Title  by  Creation. 

Title  by  creation  is  the  title  by  which  a  person  acquires  an 
estate  in  such  personal  property  as  derives  its  existence  from 
his  skill  and  labor.  Any  chattel  which  can  be  artificially  pro- 
duced may  be  held  by  this  title.  Two  species  of  property, 
however,  which  result  from  the  creative  powers  of  man  are  of 
especial  legal  importance.  These  are  Inventions  and  Literary 
Property.  An  invention  is  any  new  and  useful  art,  machine, 
manufacture,  composition  of  matter,  or  design,  or  any  new  and 
useful  improvement  on  any  art,  machine,  manufacture,  com- 
position of  matter,  or  design,  which  has  not  been  already  known 
and  used.  The  essence  of  an  invention  is  the  mental  conception 
or  idea  which  is  embodied  in  the  external  art  or  article,  and  to 
this  idea  the  right  of  property  extends  in  whatever  other  ex- 
ternal form  it  may  be  expressed.  Literary  property  consists 
of  the  contents  of  books,  maps,  charts,  prints,  engravings, 
pieces  of  written  music,  and  the  like.  The  essence  of  literary 
property  is  not  the  idea  or  mental  conception  which  the  lan- 
guage or  the  images  or  the  notes  portray,  but  the  words,  lines, 


§  156  TITLE  TO  PERSONAL  PROPERTY  1G9 

colors,  signs,  and  their  arrangement  in  which  the  author  or  com- 
poser has  presented  his  ideas.  Both  inventions  and  literary 
property  belong  solely  to  their  creator  until  they  are  voluntarily 
dis'closed  to  the  public  at  large;  then  they  become  incapable 
of  exclusive  dominion  and,  like  other  abandoned  chattels,  are 
regarded  as  the  common  property  of  all  mankind.  For  the 
encouragement  of  authors  and  inventors,  and  in  order  to 
enable  them  to  reap  some  pecuniary  profit  from  their  labors, 
civilized  nations  usually  confer  upon  them  a  temporary  monopoly 
in  their  productions  by  prohibiting  other  persons  to  make,  use, 
or  sell  them  ^^^thout  their  consent.  The  laws  by  which  this 
monopoly  is  granted  are  known  as  the  Patent  and  Copyright 
Laws. 

Rem.  In  the  United  States  the  patent  and  copyright  laws  are 
enacted  by  Congress,  and  are  in  force  in  all  the  individual  States 
and  Territories.  Similar  laws  may  be  prescribed  by  the  indi- 
vidual States,  but  have  no  validity  outside  the  area  of  the  State, 
and  are  not  usually  available  to  authors  and  inventors  who  ob- 
tain monopolies  imder  Acts  of  Congress.  The  Federal  patent 
hxws  ])rovide  for  the  issue  of  letters  patent  to  the  inventor,  be- 
stowing uj)on  him  the  exclusive  right  to  make,  use,  and  sell  his 
invention  for  a  definite  term  of  years.  The  Federal  copyrigiit 
laws  provide  for  the  issue  of  a  certificate  to  the  author  or  com- 
poser, conferring  upon  him  the  exclusive  right  to  print,  publish, 
or  sell  his  literary  or  musical  production  during  a  prescribed 
period.  A  similar  protection  is  extended  by  courts  of  law  and 
equity  to  trade  marks,  which  are  visible  symbols  affixed  to  com- 
mqfiities  in  order  to  indicate  their  origin  or  ((uality;  and  recent 
Federal  statutes  provide  for  their  earlier  and  additional  security 
through  a  .system  of  j)ublic  claim  and  registration. 

Rrad:  2  1^1.  Com.,  pp.  405-407; 

2  Kent  Com.,  Loct.  xxxvi,  pp.  365-384; 

Barbour,  Ri^lits  of  Persons  and  Property,  pp.  601-627; 

Dwij^lit,  Law  of  Persons  and  Property,  pp.  488-554; 

Clark,  I'^leinentary  Law,  §  227; 

Darlington ,  Personal  Property,  pp.  192-277; 

Hrantly,  Personal  Property,  §§  40-73,  93-96; 

Smith,  Personal  Property,  §§  42-60; 

1  Schouler,  Personal  Property,  §§  518-541. 


156.     Of  Title  by  Gift. 
Tifle  by  cfijf  is  the  title  by  which  a  person  acquires  an  estate 
in    personal    property    through    its    immediate,   voluntary,  and 


170  ELEMENTARY  LAW  §  157 

gratuitous  transfer  to  him  by  another.  Gifts  are  of  two  kinds : 
(1)  Gifts  inter  vivos;  and  (2)  Gifts  causa  mortis.  A  gift  inter 
vivos  is  an  absolute  gift  from  one  living  person  to  another,  in- 
tended to  take  and  actually  taking  immediate  effect.  A  gift 
causa  mortis  is  a  conditional  gift  made  by  a  person  in  his  sup- 
posed last  illness,  to  take  effect  if  he  then  dies  according  to  his 
expectation,  but  to  be  void  if  he  recovers.  To  both  these  forms 
of  gift  the  delivery  of  the  property  to  the  donee  or  to  some  person 
on  his  behalf  is  essential.  If  the  property  is  a  chose  in  possession 
actual  delivery  must  be  made,  if  possible.  If  actual  delivery  is 
impossible  on  account  of  the  nature  or  situation  of  the  property, 
some  act  equivalent  to  it  must  be  performed  by  the  donor, 
whereby  he  parts  not  only  with  the  possession  but  with  the 
ownership  of  the  property.  Where  the  property  is  a  chose  in 
action  it  must  be  transferred  by  an  assignment,  or  by  acts  and 
declarations  which  have  the  same  legal  effect. 

Rem.  A  gift  inter  vivos  is  irrevocable  between  the  parties 
unless  it  was  procured  by  fraud,  or  while  the  donor  was  legally 
incapable  of  making  it.  It  can,  however,  be  set  aside  when 
employed  by  the  donor  as  a  means  of  defrauding  his  creditors, 
or  they  may  ignore  the  gift  and  levy  their  executions  on  the  prop- 
erty itself.  A  gift  causa  mortis  is  always  revocable  by  the  donor 
before  his  death ;  when  perfected  by  his  death  it  becomes  irrev- 
ocable, except  for  fraud. 

Read:  2  Bl.  Com.,  pp.  440-442,  514; 

2  Kent  Com.,  Lect.  xxxviii,  pp.  437-448; 

Barbour,  Rights  of  Persons  and  Property,  pp.  627-632; 

Walker,  American  Law,  §  207; 

Andrews,  American  Law,  §  578; 

Clark,  Elementary  Law,  §  230; 

Darlington,  Personal  Property,  pp.  55-75; 

Smith,  Personal  Property,  §§  78-89; 

2  Schoiiler,  Personal  Property,  §§  54-198; 
1  Parsons  on  Contracts,  pp.  234-237; 

3  Redfield  on  Wills,  pp.  321-349. 


§  157.    Of  Title  by  Testament. 

Title  by  testament  is  the  title  by  which  one  person  acquires  an 
estate  in  personal  property  after  the  death  of  the  former  owner, 
and  by  virtue  of  his  last  will  and  testament.  The  rules  governing 
the  execution  of  a  will  of  personal  property,  the  requisites  for  its 


§  157  TITLE  TO   PERSONAL   PROPERTY  171 

validity,  the  mode  of  its  interpretation,  and  the  form  of  its  pro- 
bate are  usually  the  same  as  those  applied  to  a  will  of  lands, 
though  in  some  States  certain  differences  are  permissible  under 
the  local  law.  The  property  disposed  of  in  a  testament  is  called 
a  legacy;  and  the  person  to  whom  it  is  given  is  known  as  a 
legatee.  Legacies  are  of  two  kinds:  (1)  Specific  Legacies; 
and  (2)  General  Legacies.  A  specific  legacy  is  a  particular 
article,  like  a  certain  portrait,  given  by  the  testament  to  a  par- 
ticular individual.  A  general  legacy  is  an  amount  of  money,  or 
a  quantity  of  chattels,  the  donation  of  which  \\\\\  be  satisfied 
by  any  money  of  the  same  amount  or  any  chattels  of  the  same 
character  and  measure.  Legacies  are  always  conditional  upon 
the  solvency  of  the  decedent's  estate,  in  its  relation  to  both 
debts  and  legacies.  The  debts  must  at  all  events  be  paid  in  full ; 
and  in  case  of  a  deficiency,  the  general  legacies  are  first  drawn 
upon  pro  rata,  and  when  these  are  exhausted  the  specific  legacies 
may  be  also  taken.  Legacies  are  ordinarily  payable  one  year 
after  the  death  of  the  testator,  and  if  the  executor  unreasonably 
withholds  the  payment  he  may  be  compelled  to  make  it  by  the 
court.  When  a  legatee  dies  during  the  lifetime  of  the  testator, 
the  legacy  is  said  to  lapse,  and  the  property  covered  by  it,  un- 
less otherwise  provided  in  the  will,  sinks  back  into  the  intes- 
tate estate  and  passes  to  the  legal  representatives  by  title  by 
succession. 

Rem.  In  ancient  times  a  will  of  personal  property  could  be 
made  by  spoken  words,  and  was  called  a  nuncupative  will.  This 
is  now  j)ermitted  only  in  cases  of  great  emergency,  like  a  soldier  in 
actual  military  service  or  a  mariner  at  sea,  and  even  then  is  care- 
fully regulated  by  the  law  of  the  testator's  domicile.  An  olo- 
graphic will  is  one  wholly  written  by  the  testator  himself,  on 
which  account  its  language  may  sometimes  receive  a  more  liberal 
interpretation. 

Read:  2  Bl.  Com.,  pp.  489-504,  512-515; 
4  Kent  Com.,  Lect.  Ixviii,  pp.  516-518; 
Barbour,  Rights  of  Persons  and  Property,  pp.  646,  647; 
Dwight,  Law  of  Persons  and  Property,  pp.  581-668; 
Clark,  Elementary  Law,  §  230; 
Tiedeman,  Real  Property,  §§  879,  885; 
Rice.  Real  Property.  §§  40.3,  404; 
Darlington,  Personal  Property,  pp.  31.5-3.30; 
Smith,  Personal  Property,  §§  90-95,  i:i0-133; 


172  ELEMENTARY   LAW  §  158 

1  Schouler,  Personal  Property,  §§  561-563; 

Page  on  Wills,  §§  738-746; 

Croswell,  Handbook  on  Executors  and  Administrators,  §§  147-162; 

Ante,  §§  137-139. 

§  158.     Of  Title  by  Contract:  Essentials  of  a  Contract. 

Title  by  contract  is  the  title  by  which  one  person  acquires  an 
estate  in  personal  property  through  its  transfer  to  him  by  its 
former  owner  for  a  valuable  consideration.  A  contract  is  an 
agreement  between  two  or  more  persons  upon  a  sufficient  con- 
sideration. To  it  forir  things  are  necessary:  (1)  Parties  able 
to  contract;  (2)  A  sufficient  consideration;  (3)  A  subject- 
matter  concerning  which  the  contract  is  made;  (4)  An  actual 
contracting  by  proposal  on  one  side  and  acceptance  on  the  other. 
A  contract  between  two  persons  only  is  called  a  bipartite  con- 
tract; between  three  persons,  each  of  whom  thereby  puts  him- 
self under  a  distinct  obligation  to  both  the  others,  is  a  tripartite 
contract;  between  four  persons,  similarly  related,  a  quadri- 
partite  contract. 

Rem.  The  parties  to  a  contract  may  be  any  persons  of  normal 
status.  Persons  of  abnormal  status  may  or  may  not  possess  con- 
tracting power  according  to  the  character  of  the  contract  in 
question  and  the  nature  and  degree  of  their  own  abnormality. 
Thus  an  infant  can  make  no  binding  contract  except  for  necessa- 
ries such  as  food,  clothing,  medical  attendance,  education,  and 
the  like ;  and  even  these  contracts  are  invalid  unless  the  articles 
contracted  for  were  really  necessary  and  have  been  actually  sup- 
plied to  him  by  the  other  party  to  the  contract.  Insane  persons, 
unless  already  under  legal  guardianship,  can  enter  into  any  con- 
tracts which  they  are  at  the  time  both  able  to  comprehend  and 
have  sufficient  will  power  to  accept  or  reject.  Married  women 
may  make  agreements  in  reference  to  their  sole  and  separate 
property,  and  under  local  statutes  may  enjoy  a  wider  contractual 
capacity;  if  abandoned  by  their  husbands  they  usually  have  all 
the  powers  of  a  jeme  sole.  Persoris  under  duress  are  not  bound 
by  contracts  which,  but  for  such  duress,  they  would  not  have 
made.  The  consideration  of  a  cmitract  must  possess  pecuniary 
value.  It  may  be  time,  money,  service,  chattels,  land,  or  in- 
corporeal rights ;  or  even  the  surrender  or  suspension  of  a  right 
having  some  real  or  prospective  value.  Mutual  promises  may  be 
considerations  for  one  another,  and  a  subsisting  legal  duty  is 
sufficient  consideration  for  a  promise  to  perform  it.  Every  con- 
sideration, to  be  sufficient,  must  be  lawful;  for  no  one  is  per- 


§  159  TITLE   TO   PERSONAL   PROPERTY  173 

mitted  to  enforce  a  promise  based  on  his  own  wrong.  The 
.nihjert-jnatter  of  a  contract  may  be  any  corporeal  object  or  any 
incorporeal  right,  or  any  act  or  forbearance  which  is  both  pos- 
sible and  lawful.  A  matter  intrinsically  impossible  cannot  be 
the  subject  of  a  valid  contract,  but  any  one  may  promise  a 
possible  thing  though  it  may  chance  to  be  impossible  to  him. 
Where  the  subject-matter  is  unlawful,  whether  immoral  or  only 
prohibited  by  law,  the  contract  is  void.  The  proposal  and  ac- 
ceptance, or  meeting  of  the  minds  of  the  parties,  exists  only 
where  all  the  parties  understand  both  the  consideration  and  the 
subject-matter  in  precisely  the  same  way,  and  indicate  to  one 
another  by  unccpiivocal  words  or  acts  that  they  consent  and 
bind  themselves  thereto. 

Read:  2  Bl.  Com.,  pp.  290-293,  442,  444-446; 
Rob.  Am.  Jur.,  §§  27,  28,  35,  42,  43,  45; 
2  Kent  Com.,  Lect.  xxviii,  pp.  150-170;    Lect.  xxxi,  pp.  234-243; 

Lect.  xxxix,  pp.  450-453,  477; 
Barbour,  Rights  of  Persons  and  Property,  pp.  632-G38; 
Walker,  American  Law,  §§205,  206,  208-210; 
Andrews,  American  Law,  §§  533-549,  551,  555-569; 
Clark,  Elementary  Law,  §§  127,  130-134,  230; 
Darlington,  Personal  Property,  pp.  116-118,  131-138; 
Langdell,  Contracts,  §§  1-25,  45-98,  148-156,  178-187; 
Wliarton,  Contracts,  §§  1-279,  296-624; 
Anson,  Contracts  (Knowlton  Ed.),  pp.  1-42,  68-217; 
Addison,  Contracts    (Abbott   and   Wood    Ed.),   pp.    1-19,   24-157, 

1135-1172; 
Metcalf,  Contracts,  pp.  15-119,  187-314; 
Clark,  Contracts  (Tiffany  Ed.),  §§  1-26,  61-192; 
.Benjamin,  Contracts,  pp.  7-71,  132-289,  382-384,  385-390; 
Bishop,  Contracts  (Early  Ed.),  §§  22-102,  312-334,  467-550,  637- 

744,  880-1164; 

1  Parsons,  Contracts,  pp.  6,  7,  293-491; 

2  Parsons,  Contracts,  pp.  672-675,  746-767; 
Lawson,  Contracts,  §§  1-32,  91-164,  206-350,  419-426. 

§  169.     Of  Title  by  Contract :  Express  and  Implied  Contracts. 

An  express  contract  is  a  contract  in  which  the  agreement 
between  the  parties  is  fully  set  forth  in  oral  or  written  words. 
An  implied  contract  is  a  contract  in  which  the  proposal  and 
acceptance,  not  being  set  forth  in  words,  are  presumed  by  law 
from  the  conduct  of  the  parties.  Express  and  implied  con- 
tracts are  of  equal  obligation,  but  differ  in  their  form  and  mode 
of  proof  and,  to  some  extent,  in  the  subjects-matter  in  reference 
to  which  they  can  be  employed.  In  an  express  contract,  where 
the  proposal   aiul  acceptance  are   both   manifested   by   words. 


174  ELEMENTARY  LAW  §  159 

the  meaning  of  the  words  in  each  must  correspond  exactly  with 
their  meaning  in  the  other,  or  there  will  be  no  contract.  In  an 
implied  contract  the  circumstances  must  be  such  that  no  con- 
clusion, as  to  the  meaning  and  intention  of  the  parties,  except 
the  one  implied  by  law  is  possible.  When  an  express  contract 
isvoid  for  want  of  correspondence  in  the  proposal  and  acceptance, 
the  law  will  sometimes  imply  from  the  conduct  of  the  parties 
a  contract  in  lieu  of  that  which  they  had  failed  to  properly 
express.  An  express  contract  becomes  complete  and  binding 
when  the  verbal  proposal  of  one  party  has  been  verbally  and 
unconditionally  accepted  by  the  other.  An  implied  contract 
becomes  complete  and  binding  when  all  the  circumstances  from 
which  the  law  implies  the  contract  have  transpired. 

Rem.  A  contract  arises  by  implication  of  law  whenever  be- 
tween parties  able  to  contract,  and  in  reference  to  a  possible  and 
lawful  subject-matter,  a  valuable  consideration  moves  from  one 
to  the  other  under  circumstances  which  indicate  that  a  pro- 
posal and  acceptance  was  mutually,  even  if  unconsciously,  in- 
tended.    The  principal  classes  of  implied  contracts  are  these: 

(1)  Quantum  mer^iit,  or  the  implied  agreement  of  the  employer 
to  pay  the  employee  what  his  services  are  reasonably  worth; 

(2)  Quantum  valebat,  or  the  implied  agreement  of  a  vendee  to 
pay  the  vendor  what  the  property  sold  is  reasonably  worth; 

(3)  Money  had  and  received,  or  the  implied  agreement  of  one 
who  receives  another's  money,  without  giving  valuable  consider- 
ation for  it,  to  pay  it  over  to  that  other  on  demand ;  (4)  Money 
laid  out  and  expended,  or  the  implied  agreement  of  one  person, 
for  whom  another  at  his  request  has  expended  his  own  money 
without  receiving  valuable  consideration  for  it,  to  pay  it  to  that 
other  on  demand ;  (5)  Money  lent  and  advanced,  or  the  implied 
agreement  of  one  person,  to  whom  another  has  loaned  money, 
to  pay  it  to  that  other  on  demand;  (6)  Accoimt  stated,  or  the 
implied  agreement  of  two  merchants,  who  have  adjusted  their 
accounts  with  one  another,  that  the  balance  due  from  either 
to  the  other  shall  be  paid  upon  demand ;  (7)  Interest  due,  or 
the  implied  agreement  of  a  debtor  to  pay  lawful  interest  on  all 
sums  of  money  which  may  be  overdue ;  (8)  Use  and  occupation, 
or  the  implied  agreement  of  one  person  who  occupies  the  land  of 
another,  without  a  lease  fixing  a  stipulated  rent,  to  pay  the 
owner  of  the  land  whatever  the  use  thereof  may  be  reasonably 
worth ;  (9)  Fidelity  and  skill,  or  the  implied  agreement  of  one 
person,  who  undertakes  to  perform  any  service  for  another, 
that  he  will  discharge  his  duties  with  the  requisite  ability  and 


§  159  TITLE  TO   PERSONAL  PROPERTY  175 

diligence,  and  the  implied  agreement  of  all  contracting  parties 
that  fairness  and  honesty  shall  be  observed  between  them.  Be- 
sides the  various  classes  of  implied  contracts  there  are  other 
transactions  resembling  contracts  in  their  parties,  consideration, 
and  subject-matter,  but  whose  circumstances  do  not  warrant  the 
law  in  implying  a  proposal  and  acceptance,  though  reason  and 
justice  demand  that  one  of  the  parties  should  make  compensa- 
tion 10  the  other.  These  are  called  quasi  contracts,  among  which 
are  the  following:  (1)  The  imputed  promise  of  a  citizen  to  pay 
his  taxes,  or  of  a  judgment  debtor  to  satisfy  the  judgment,  or  of 
a  defeated  party  in  an  arbitration  to  perform  the  award ;  (2)  The 
imputed  promise  of  parties  who  have  attempted  to  make  a  valid 
contract,  but  have  not  succeeded  and  yet  have  acted  as  if  a  vaUd 
contract  had  been  made,  to  carry  out  the  terms  of  the  agreement 
according  to  their  original  intention ;  (3)  The  imputed  promise 
of  one  party  to  a  contract,  on  whom  the  other  contracting  party 
has  not  conferred  the  full  benefit  which  entitles  him  to  compen- 
sation under  the  contract,  to  pay  for  whatever  benefit  he  has 
received ;  (4)  The  imputed  promise  of  a  party,  to  whom  with- 
out his  request,  or  even  without  his  knowledge,  goods  or  money 
have  been  furnished  or  services  rendered  under  circumstances 
which  make  it  reasonable  and  just  that  he  should  pay  for  them, 
to  remunerate  the  party  at  whose  cost  they  have  been  supplied ; 
(5)  The  imputed  promise  of  a  person,  who  has  fraudulently  or 
by  coercion  obtained  money  from  another,  to  return  it  on  de- 
mand ;  (6)  The  imputed  promise  of  a  person,  who  has  wrong- 
fully taken  and  sold  the  property  of  another,  to  account  to  the 
owner  of  the  property  and  pay  to  him  the  price  received  at  his 
request. 

Read:  2  Bl.  Com.,  p.  443; 
3  Bl.  Com.,  pp.  158-164; 

Dwight,  Law  of  Persons  and  Property,  pp.  347-349; 
Walker,  American  Law,  §  214; 
Clark,  Elementary  Law,  §§  134-138; 
Dadington,  Personal  Property,  pp.  113,  114; 
Wliarton,  Contracts,  §§  707-721; 
Anson,  Contracts  (Knowlton  Ed.),  pp.  362-367; 
Addison,  Contracts  (Abbott  and  Wood  VA.),  pp.  22-24,  1025-1051 ; 
Metcalf,  Contracts,  pp.  1-15; 
Keener,  Quasi  Contracts,  pp.  3-25; 
Clark,  Contracts  (Tiffany  Ed.),  §§  5,  14,  15,  279-282; 
Bishop,  Contracts  (Early  Ed.),  §§  181-311; 
1  Parsons,  Contracts,  pp.  4,  7,  notes; 
Lawson,  Contracts,  §§  33-58. 


176  ELEMENTARY   LAW  §  160 

§  160.     Of  Title  by  Contract:  Oral  and  Written  Contracts. 

An  express  contract  may  be  either  oral  or  written,  and  when 
written  may  be  executed  by  signing  with  or  without  a  seal. 
It  may  also  be  partly  written  and  partly  oral,  but  in  this  case 
the  same  provisions  cannot  be  both  oral  and  written,  since  the 
written  supersedes  the  oral  and  cannot  be  contradicted  nor 
restricted  by  it.  A  contract  in  writing  and  not  under  seal  is 
called  a  "simple  contract,"  to  distinguish  it  from  a  contract 
under  seal  which  is  known  as  a  "covenant"  or  "specialty." 
A  specialty  and  a  simple  contract  differ  in  several  important 
particulars.  In  a  specialty  the  seal  raises  the  presumption  of  a 
sufficient  consideration  for  the  promise,  while  in  a  simple  con- 
tract an  actual  consideration  must  be  proved;  the  action  at 
law  on  the  breach  of  a  specialty  is  covenant-broken,  that  on  a 
simple  contract  is  debt  or  assumpsit ;  the  Statute  of  Limitations 
generally  bars  a  suit  upon  a  simple  contract  much  earlier  than 
one  upon  a  specialty;  and  a  specialty  is  of  much  higher  force 
than  a  simple  contract  as  an  estoppel.  Formerly,  any  contract 
might  be  written  or  oral  at  the  option  of  the  parties,  but  by  the 
Statute  29  Chas.  II.  ch.  3  (a.  d.  1677-78),  commonly  called  the 
"Statute  of  Fratids,"  certain  contracts  were  required  to  be  in 
writing.  This  Statute  is  substantially  in  force  in  all  our  American 
States. 

Rem.  The  contracts  which  the  Statute  of  Frauds  requires  to 
be  in  writing  arc  usually  six:  (1)  Contracts  for  the  transfer  of 
any  interest  in  real  property  except  by  leases  for  short  terms, 
whose  duration  varies  in  different  States ;  (2)  Contracts  that 
cannot  be  performed  within  one  year  from  their  date ;  (3)  Con- 
tracts of  executors  or  administrators  to  pay  a  debt  of  the  deced- 
ent out  of  their  own  estate ;  (4)  Contracts  to  answer  for  the  debt, 
default,  or  miscarriage  of  another;  (5)  Contracts  made  in  con- 
sideration of  marriage ;  (6)  Contracts  for  the  sale  of  chattels  of 
above  a  designated  value,  unless  the  buyer  accepts  part  of  the 
goods  sold  or  pays  a  portion  of  the  purchase  money.  All  these 
contracts  could  arise  from  mere  words  alone  without  any  action 
or  external  fact  to  demonstrate  their  existence;  and  hence  it 
was  not  difficult  for  fraud  to  be  committed  by  employing  a  per- 
jured witness  to  testify  that  the  words  necessary  to  the  pretended 
contract  had  been  spoken,  while  the  alleged  speaker,  being  a 
party  to  the  controversy  and  therefore  not  allowed  to  testify, 
was  unable  to  deny  them.    It  was  for  the  prevention  of  this  mis- 


§  161  TITLE  TO   PERSONAL  PROPERTY  177 

chief  that  the  Statute  of  Frauds  was  enacted;  and  hence  it  is 
considered  rather  as  a  rule  of  evidence  than  a  part  of  the  law  of 
contract,  and  its  protection  may  be  waived  by  the  defendant  if 
he  chooses.  Hence,  also,  if  the  contract,  though  not  in  writing, 
is  performed  on  one  side  to  the  acceptance  of  the  other,  the 
latter  cannot  repudiate  its  obUgations;  and  courts  of  equity 
accept  such  a  part  'performance  of  the  contract  as  is  sufficient  to 
indicate  its  terms  as  ecjuivalent  to  written  evidence  of  its  exist- 
ence as  against  the  person  who  has  part  performed.  The  writing 
required  by  the  Statute  is  not  a  formal  contract,  but  a  memoran- 
dum which  discloses  the  terms  of  the  agreement  and  is  signed  by 
the  persons  to  be  charged  thereby. 

Read:  2  Bl.  Com.,  pp.  465,  466; 
3  Bl.  Com.,  pp.  157,  158; 

2  Kent  Com.,  Lect.  xxxix,  pp.  510,  511; 
Walker,  American  Law,  §§  211,  213; 
Andrews,  American  Law,  §§  550,  552; 
Clark,  Elementary  Law,  §§  128,  129; 

Darlington,  Personal  Property,  pp.  115,  116,  118-123,  126-131; 

Wharton,  Contracts,  §§  677-705; 

Anson,  Contracts  (Knowlton  Ed.),  pp.  43-65; 

Addison,  Contracts  (Abbott  and  Wood  Ed.),  pp.  19-22,  158-180; 

Clark,  Contracts  (Tiffany  Eil.),  §§  27-60; 

Benjamin,  Contracts,  pj).  71-131,  384,  385; 

Bishop,    Contracts    (Early    Ed.),    §§  103-180,    335-364,    745-761, 

1165-1176,  1228-1335; 
1  Parsons,  Contracts,  pp.  7,  8; 

3  Parsons,  Contracts,  pp.  3-60; 
Lawson,  Contracts,  §§  59-90; 

Bollcs,  Important  English  Statutes,  p.  94,  Statute  of  Frauds,  Act  29 
Chas.  II,  c.  3. 

§  161.     Of    Title    by    Contract:     Construction    and    Validity    of 
Contracts. 

A  contract  is  construed  according  to  the  intent  of  the  parties 
as  manifested  by  the  words,  acts,  or  relations  in  which  the  agree- 
ment is  expressed  or  from  which  it  is  imj)Hed.  It  is  also  inter- 
preted in  the  Hght  of  all  existing  laws  and  usages  pertaining  to 
the  subject-matter  of  the  contract,  and  with  regard  to  all  its 
necessary  incidental  rights  unless  these  are  expressly  excluded 
by  its  terms.  The  words  of  a  contract  are  taken  in  their  legal 
meaning,  if  they  have  one ;  if  not,  then  in  their  customary  u.se, 
or  in  the  .sense  indicated  by  the  actions  of  the  parties  in  pur- 
suance of  the  contract,  and  by  their  subsequent  agreements  in 
reference  to  the  nature  and  j)erfornuince  of  their  obligations. 

12 


178  ELEMENTARY   LAW  §  162 

Should  it  happen  that  a  contract  interpreted  by  the  foregoing 
rules  does  not  express  the  intent  of  any  of  the  parties,  they  may 
by  mutual  consent  rescind  it  and  make  another  in  its  stead;  or 
if  this  be  impracticable  a  court  of  equity  may  upon  their  petition 
amend  it  to  conform  to  their  intent.  But  neither  of  the  parties 
has  a  right,  as  against  the  others,  to  repudiate  the  contract  or  to 
have  it  amended  on  the  ground  that  it  does  not  express  the 
agreement  as  he  understood  it,  unless  his  consent  to  it  was  pro- 
cured by  fraud. 

Rem.  The  law  which  governs  the  interpretation  as  well  as 
the  validity  of  a  contract  is  primarily  the  lex  loci  contractus, 
unless  the  contract  relates  to  real  property;  in  which  case  it 
must  conform  to  the  lex  rei  sitoe.  Where  a  contract  made  in  one 
State  is  to  be  performed  in  another  the  lex  loci  solutionis  controls 
it,  at  least  as  to  the  matter  of  its  performance.  The  parties  may 
also  adopt  the  law  of  any  State  as  the  lex  loci  pacti,  and  will  then 
be  governed  by  it  unless  the  policy  of  the  State  where  the  con- 
tract was  made  or  is  to  be  performed  forbids.  A  contract  good 
in  part  under  these  laws  but  void  as  to  the  rest,  may,  if  divisible, 
be  sustained  as  to  the  valid  portion  while  the  remainder  is 
ignored.  Where  a  contract  is  made  the  basis  of  a  suit,  the  pro- 
ceedings in  the  action,  and  the  character  of  the  remedy,  are 
regulated  by  the  lex  fori. 

Read:  2  Kent  Com.,  Lect.  xxix,  pp.  453-463; 
Clark,  Elementary  Law,  §  135; 
Brantly,  Personal  Property,  §§  288-369; 
Langdell,  Contracts,  §§  20-44,  105-147; 
Wharton,  Contracts,  §§  545-674,  1061-1071; 
Anson,  Contracts  (Knowlton  Ed.),  pp.  237-270; 
Addison,  Contracts  (Abbott  and  Wood  Ed.),  pp.  181-208; 
Metcalf,  Contracts,  pp.  315-365; 
Clark,  Contracts  (Tiffany  Ed.),  §§  209-223; 
Benjamin,  Contracts,  pp.  290-311,  390,  391; 
Bishop,    Contracts   (Early   Ed.),    §§  365-466,  550-576,    133&-1349, 

1368-1412; 
2  Parsons,  Contracts,  pp.  491-613; 
Lawson,  Contracts,  §§  369-389. 


162.     Of  Title  by  Contract:  Performance  of  Contracts. 

When  a  contract  has  once  been  legally  made  between  the 
parties  the  law  requires  of  them  the  precise  fulfilment  of  all 
its  obligations  according  to  their  terms,  unless  before  the  time 
fixed  for  such  fulfilment  the  contract  itself  has  been  extinguished 


§  162  TITLE  TO  PERSONAL  PROPERTY  170 

either  by  their  mutual  consent  or  by  operation  of  law.  A  con- 
tract which  has  been  thus  fulfilled  is  called  an  executed  contract; 
a  contract  not  fulfilled  is  known  as  an  executory  contract.  A 
contract  in  which  the  consideration  is  received  at  the  time  of 
the  agreement,  leaving  only  the  promise  of  one  party  unper- 
formed, is  a  unilateral  contract;  one  made  in  consideration  of 
mutual  promises  is,  at  the  time  of  its  inception,  a  bilateral  or 
trilateral  contract  according  to  the  number  of  its  parties,  and 
becomes  bilateral  or  unilateral  as  the  successive  promises  are  ful- 
filled. In  a  rinilateral  contract  the  obligation  of  the  promissor  to 
perform  is  absolute.  In  a  bilateral  contract,  if  the  j^romise  upon 
one  side  is  made  conditional  upon  the  j)revious  performance  of 
the  promise  on  the  other,  no  duty  to  perform  the  conditional 
promise  arises  until  the  previous  promise  is  redeemed.  Where 
the  performance  of  the  previous  promise  requires  the  co-operation 
of  the  party  to  whom  that  promise  is  made,  it  is  sufficient  for 
the  previous  promisor  to  perform  as  far  as  he  is  able,  and  then 
tender  or  ofter  to  perform  the  residue  with  the  required  co- 
operation of  the  promisee;  if  the  tender  is  accepted,  the  per- 
formance must  then  be  coni])leted  accorrhng  to  the  contract ; 
if  the  tender  is  refused  the  previous  promisor  is  absolved  from 
further  duties  and  the  promisee  becomes  liable  in  damages. 
Thus  in  a  contract  to  sell  goods  for  a  price  j^ayable  on  delivery 
the  ^uyer  is  not  liable  for  tiie  price  until  the  goods  are  delivered, 
but  if  the  seller  olfers  and  the  buyer  refuses  to  accept  them, 
the  duty  of  the  seller  is  at  an  end  and  the  buyer  is  obliged  to 
compensate  him  for  his  loss.  An  apparently  single  contract 
is  sometimes  a  mere  aggregation  of  divisible  and  independent 
contractu;  in  which  case  each  member  of  the  aggregation  stands 
alone,  both  as  to  the  duty  of  performance  and  the  consequences 
of  a  failure  to  perform.  The  non-performance  of  a  contract  is 
excused  when  performance  is  rendered  impossible  by  the  act  of 
God,  or  of  the  public  enemy,  or  of  the  other  contracting  party, 
or  is  forbidden  by  laws  enacted  since  the  contract  was  made, 
o'  when  the  right  to  performance  is  merged  in  other  rights, 
or  is  waived  or  released  by  later  contracts. 

Rem.  "^rhe  rights  accruing  under  a  contract  may  be  extin- 
guished, before  the  time  fixed  for  its  performance,  by  a  rrlra.fe 
given  by  the  jironiisee  to  the  promisor,  or  by  the  joint  rr.vc/.v- 


180  ELEMENTARY   LAW  §  163 

sion  of  the  contract  as  a  whole,  or  by  the  making  of  a  new  con- 
tract which  supersedes  the  old.  An  express  contract  which  the 
law  requires  to  be  in  writing  cannot  be  released,  rescinded,  or 
superseded  by  mere  words  unless  these  are  also  in  writing;  but 
acts  of  the  parties  manifesting  an  intention  on  both  sides  to 
repudiate  the  contract,  and  placing  the  parties  in  such  relations 
to  each  other  that  the  contract  cannot  be  performed,  nor  its 
non-performance  justly  be  regarded  as  a  ground  for  legal  com- 
pensation, puts  an  end  to  the  contract  as  a  practical  obhgation; 
and  if  the  rights  created  by  it  are  not  extinguished  the  parties 
are  at  least  estopped  from  attempting  to  enforce  them.  A  con- 
tract is  also  extinguished  by  a  judgment  in  favor  of  the  promisee 
in  an  action  for  non-performance,  —  the  contract  being  merged 
in  the  judgment  which  thenceforth  becomes  the  basis  of  all 
claims  against  the  promisor. 

Read:  2  Bl.  Com.,  p.  443; 

2  Kent  Com.,  Lect.  xxxix,  p.  450; 

Walker,  American  Law,  §§  205,  213; 

Andrews,  American  Law,  §§  553-571; 

Clark,  Elementary  Law,  §  136; 

Langdell,  Contracts,  §§  157-177; 

Wharton,  Contracts,  §§  282-293,  869-918,  1031-1042; 

Anson,  Contracts  (Knowlton  Ed.),  pp.  271-328; 

Addison,  Contracts  (Abbott  and  Wood  Ed.),  pp.  1100-1134,  1173- 

1267; 
Metcalf,  Contracts,  pp.  366-393; 
Clark,  Contracts  (Tiffany  Ed.),  §§  224-265; 
Benjamin,  Contracts,  pp.  312-381,  391-395; 
Bishop,  Contracts  (Early  Ed.),  §§  577-622,  623-636,  762-879,  1350- 

1367,  1413-1461; 
2  Parsons,  Contracts,  pp.  636-733; 
Lawson,  Contracts,  §§  390-455. 


§  163.     Of  Title  by  Contract:  Contracts  of  Sale. 

Contracts  enter  into  almost  every  species  of  human  trans- 
actions whether  relating  to  personal,  property,  or  family  rights. 
Those  pertaining  to  personal  property  are  (1)  Contracts  of 
Sale;  (2)  Contracts  of  Bailment;  (3)  Contracts  of  Service; 
(4)  Contracts  of  Partnership;  (5)  Contracts  of  Insurance; 
(6)  Contracts  of  Debt;  (7)  Contracts  of  Indorsement;  (8) 
Contracts  of  Guaranty  and  Suretyship.  A  contract  of  sale  is 
a  contract  by  which  the  ownership  of  some  specific  existing 
chattel  is  immediately  transferred  from  one  person  to  another, 
in  consideration  of  some  specific  price  or  recompense  in  value. 
This  contract  must  be  carefully  distinguished  from  a  contract 


§  163  TITLE  TO  PERSONAL  PROPERTY  181 

to  sell,  which  passes  no  present  property  but  speaks  only  of  the 
future,  and  may  be  one  form  of  a  contract  of  service.  A  con- 
tract of  sale  operates  only  upon  property  now  actually  existing, 
or  potentially  existing  as  the  natural  and  probable  product  of 
property  which  does  actually  exist,  like  the  young  of  living 
animals,  or  as  the  immediate  and  certain  result  of  a  right  now 
residing  in  the  vendor.  The  price  must  be  definite,  or  im- 
mediately ascertainable  by  reference  to  some  known  standard, 
like  a  market  quotation ;  and  unless  credit  is  allowed  is  payable 
on  delivery  of  the  goods.  To  complete  the  sale  a  delivery  of 
the  property  into  the  exclusive  control  of  the  buyer  is  necessary. 
Delivery  may  be  actual  or  constructive ;  actual,  when  the  goods 
are  placed  within  the  manual  possession  of  the  buyer;  con- 
structive, when  the  seller  has  done  all  he  has  to  do  in  order  to 
separate  the  goods  sold  from  other  goods,  and  to  bring  them 
under  the  power  of  the  buyer,  as  by  marking  them  with  his 
name,  giving  him  the  key  of  the  place  where  they  are  kept  or 
a  written  order  for  them  on  the  person  in  whose  custody  they 
now  are.  The  retention  of  possession  by  a  seller  after  a  pre- 
tended sale  is  a  badge  of  fraud  and,  unless  legally  justifiable 
under  the  circumstances,  renders  the  goods  still  subject  to  the 
claims  of  his  creditors  or  bona  fida  purchasers  as  against  the 
buyers,  even  though  they  may  have  paid  the  price.  The  sale 
of  irrcorporeal  personal  property  or  of  a  chose  in  action  is  usually 
called  an  assignment,  and  being  effected  only  by  words  admits 
of  no  actual  delivery.  But  the  e%ndence  of  the  intention  to 
assign,  and  of  some  formal  assignment,  must  be  clear;  and 
in  some  cases  must  be  e\ndenced  by  writings;  and  notice  of 
the  sale  must  be  given  to  the  party  against  whom  the  property 
right  is  to  be  enforced,  or  he  will  not  be  bound  by  the  assign- 
ment. The  contract  of  sale  includes  all  those  agreements  by 
which  property  is  bought  and  sold,  or  bartered  and  exchanged, 
or  loaned  to  be  consumed  and  afterward  replaced  by  other 
goods  of  the  same  kind  or  value,  or  to  be  manufactured  by  the 
vendor  under  such  conditions  as  to  become  from  their  in- 
ception the  property  of  the  vendee. 

Rem.  Coupled  with  contracts  of  sale  are  frequently  contracts 
of  icarranty,  either  express  or  implied.  The  sale  of  goods  now 
in  the  possession  of  the  vendor  to  an  innocent  bona  fide  purchaser 


182  ELEMENTARY   LAW  §  164 

carries  with  it  an  implied  warranty  of  title;  but  one  who  buys  of 
a  vendor  not  in  possession  runs  his  own  risk  of  the  vendor's 
right  to  sell.  There  is  no  implied  warranty  of  quality  from  the 
mere  fact  of  sale ;  but  one  who  sells  by  sample  warrants  that  the 
residue  of  the  goods  correspond  with  the  sample,  and  one  who 
sells  goods  as  suitable  for  use  in  a  particular  manner  or  for  a 
particular  purpose  warrants  their  suitability  for  that  use.  An 
express  warranty  is  a  formal  stipulation  on  the  part  of  the  vendor 
concerning  the  goods  sold  or  the  title  thereto.  Such  a  warranty 
does  not  guarantee  the  vendee  against  patent  defects  of  which 
he  has  knowledge;  and  if  he  desires  to  avail  himself  of  the 
warranty  he  must  do  so  as  soon  as  he  discovers  the  defect,  either 
by  returning  the  goods  to  the  vendor  or  by  notifying  him  to  re- 
move them.  A  vendor  who  sells  without  warranty  is  not  obliged 
to  disclose  secret  defects,  but  if  he  conceals  them  by  artifice  or 
falsehood  he  is  guilty  of  a  fraud  that  invalidates  the  sale.  A 
buyer  cannot  in  part  affirm  and  in  part  repudiate  a  sale  for  any 
cause,  unless  the  transaction  is  a  divisible  aggregation  of  several 
sales ;  then  some  parts  of  the  transaction  mav  be  binding  while 
the  others  are  void. 

Read:  2  Bl.  Com.,  pp.  446-451; 

2  Kent  Com.,  Lect.  xxxix,  pp.  468-552; 

Barbour,  Rights  of  Persons  and  Property,  pp.  639-646; 

Walker,  American  Law,  §§  225-229; 

Andrews,  American  Law,  §  576; 

Clark,  Elementary  Law,  §  139; 

Darlington,  Personal  Property,  pp.  75-100; 

Smith,  Personal  Property,  §§  96-114; 

Addison,  Contracts  (Abbott  and  Wood  Ed.),  pp.  915-1004; 

1  Parsons,  Contracts,  pp.  223-233,  519-609; 

Lawson,  Contracts,  §§  57,  351-368. 


§  164.     Of  Title  by  Contract:  Contracts  of  Bailment. 

A  contract  of  bailment  is  a  contract  by  which  the  possession 
of  some  specific  existing  chattel  is  transferred  from  one  person 
to  another,  in  trust,  upon  the  consideration  that  the  trust  shall 
be  fulfilled,  and  that  upon  its  fulfilment  the  chattel  shall  be 
returned  to  its  owner.  Of  this  contract  there  are  five  forms: 
(1)  Depositum:  (2)  Mandatum;  (3)  Commodatum;  (4)  Pig- 
nus;  (5)  Locatio.  Depositum,  is  the  bailment  of  a  chattel  to 
be  kept  by  the  bailee  for  the  bailor  without  recompense,  and  to 
be  returned  to  the  bailor  on  demand.  Mandatum  \s  the  bail- 
ment of  a  chattel  to  a  person  who  undertakes,  without  recom- 
pense, to  render  to  the  bailor  some  actual  service  in  respect  to 


§  164  TITLE  TO  PERSONAL  PROPERTY  183 

the  thing  bailed.  Commodatum  is  the  bailment  of  a  chattel  to 
be  used  by  the  bailee  without  pa\ing  for  its  use.  Pignus  is  the 
bailment  of  a  chattel  by  a  debtor  to  his  creditor  to  secure  the 
payment  of  the  debt.  Locatio  is  the  bailment  of  a  chattel  to 
one  who  is  to  use  it  and  pay  for  its  use,  or  who  is  to  expend 
money  or  labor  upon  it  and  be  recompensed  therefor.  Locatio 
is  of  three  kinds :  (1)  Locatio  Rei,  in  which  the  bailee  hires  the 
property  to  use  for  his  own  benefit,  and  agrees  to  pay  a  stipulated 
or  customary  rent;  (2)  Locatio  Operis  Faciendi,  in  which  the 
bailee  receives  the  property  under  an  agreement  to  repair  it 
or  improve  it,  or  safely  keep  it,  and  the  bailor  agrees  to  pay 
him  a  stipulated  or  reasonable  price;  (3)  Locatio  Operis  Mer- 
cium  Vehendarum,  in  which  the  bailee  undertakes  to  receive 
the  property  and  transport  it  from  one  place  to  another  upon  the 
payment  of  a  customary  or  stipulated  rate.  A  bailee  of  this 
latter  class  is  called  a  carrier,  and  may  be  either  a  private  car- 
rier or  a  common  carrier.  A  private  carrier  is  one  employed  on 
a  particular  occasion,  and  not  engaged  in  the  general  business 
of  public  transportation.  A  common  carrier  is  one  whose  regular 
occupation  it  is  to  transport  property  for  all  persons  indifferently, 
with  or  without  a  special  agreement  in  reference  to  the  price. 
He  is  obliged  to  carry  all  goods  that  are  offered  to  him  which  he 
has  the  ability  to  transport,  and  is  answerable  for  all  losses 
which  do  not  occur  from  the  act  of  God  or  of  the  public  enemy 
or  of  the  owner  of  the  property ;  and  in  the  absence  of  a  stipu- 
lated rate  he  is  entitled  to  the  customary  or  a  reasonable  com- 
pensation. The  general  rights  and  liabilities,  existing  between 
bailors  and  bailees,  arise  by  implication  of  law  from  the  transfer 
of  the  property  for  the  purposes  of  the  bailment.  These  may 
be  varied  by  an  express  agreement  to  suit  the  intention  of  the 
parties,  provided  it  does  not  relieve  them  from  responsibilities 
which  a  .sound  public  poHcy  requires  them  to  fulfil. 

Rem.  In  every  case  of  bailment  two  estates  may  be  predi- 
cated of  the  chattel  bailed ;  one,  the  estate  of  the  owner ;  the 
other,  the  estate  of  the  bailee.  The  estate  of  the  bailee  always 
includes  the  right  of  pos.session,  and  may  be  terminable  at  the 
will  of  the  bailee,  or  by  the  completion  of  the  trust,  or  by  lapse 
of  a  prescribed  duration.  Such  estate  is  called  the  "qualifed 
estate,''  or  ''special  property  "  of  the  bailee.     The  estate  of  the 


184  ELEMENTARY  LAW  §  164 

owner  does  not  include  the  right  of  possession,  but  comprises 
the  right  of  ownership,  the  right  to  the  fulfihnent  of  the  trust  by 
the  bailee,  and  the  right  to  resume  possession  of  the  chattel  when 
the  trust  is  completed  or  when  the  bailee  forfeits  his  possession 
by  a  breach  of  trust.  The  principal  duties  subsisting  between 
the  parties  pending  the  bailment  are :  on  the  part  of  the  bailor, 
to  allow  the  bailee  to  retain  peaceable  possession  until  the  trust 
is  fulfilled,  and  to  pay  the  recompense,  if  any,  provided  by  the 
contract ;  on  the  part  of  the  bailee,  to  devote  to  the  chattel  such 
care  and  labor  as  the  contract  stipulates  or  the  trust  implies. 
The  degree  of  care,  required  by  law  of  the  bailee,  differs  accord- 
ing to  the  nature  of  the  bailment.  In  a  depositum.  he  must  take 
the  same  care  of  the  chattel  that  he  does  of  his  own  similar 
property,  and  is  liable  only  for  such  neglect  as  a  man  of  ordinary 
prudence  would  avoid,  or  for  breach  of  faith,  or  for  want  of  the 
skill  which  he  has  undertaken  to  exercise,  or  for  the  use  of  the 
chattel  otherwise  than  for  its  own  protection  and  benefit.  In  a 
mandatum  he  is  liable  only  for  grave  neglect,  or  breach  of  faith, 
or  lack  of  skill  for  the  service,  or  unreasonable  use.  In  a  commo- 
datum  he  must  exercise  the  greatest  care,  and  is  responsible  for 
the  slightest  negligence,  and  for  any  use  of  the  chattel  which  is 
not  covered  by  the  contract.  In  pignus  he  must  take  such  care 
of  the  chattel  as  prudent  men  take  of  their  own  property,  and 
is  liable  for  ordinary  neglect,  or  for  the  use  of  the  chattel  for  his 
own  benefit,  or  for  selling  it  to  pay  the  debt  without  due  notice 
to  the  bailor.  In  locatio  he  must  exercise  ordinary  care  in  pro- 
tecting the  chattel,  and  must  subject  it  only  to  the  stipulated 
use,  repair,  improvement,  custody,  or  transportation.  In  the 
case  of  innkeepers  and  common  carriers  extraordinary  diligence 
is  required  by  law.  The  former  are  liable  for  all  losses  which 
do  not  result  from  inevitable  accident,  or  the  violence  of  the 
public  enemy,  or  the  acts  of  the  bailor  or  his  servants.  The 
latter  are  responsible  even  for  inevitable  accident  unless  it  is 
occasioned  by  the  act  of  God. 

Read:  2  Bl.  Com.,  pp.  451-453; 

2  Kent  Com.,  Lect.  xl,  pp.  558-611; 

Walker,  American  Law,  §§  161-168,  230-243; 

Andrews,  American  Law,  §§  577,  579; 

Clark,  Elementary  Law,  §  140; 

Darlington,  Personal  Property,  pp.  38-54; 

Brantly,  Personal  Property,  §§  227-236; 

Smith,  Personal  Property,  §§  143-153; 

Addison,  Contracts  (Abbott  and  Wood  Ed.),  pp.  355-434,  482-590; 

2  Parsons,  Contracts,  pp.  86-257  w. 


§  165       TITLE  TO  PERSONAL  PROPERTY       185 

§  165.     Of  Title  by  Contract:  Contracts  of  Service. 

A  contract  of  service  is  a  contract  by  which  one  person  acquires 
a  title  to  the  time,  energies,  or  skill  of  another.  The  various 
species  of  this  contract  may  be  grouped  into  foi.ir  classes:  (1) 
Contracts  for  occasional  services,  creating  no  relation  between 
the  employer  and  third  persons.  To  this  class  belong  such 
agreements  as  those  between  physician  and  patient,  passenger 
and  carrier,  and  all  others  where  the  stipulated  service  ter- 
minates upon  the  person  or  property  of  the  employer,  and 
creates  no  liability  on  his  part  toward  third  persons  for  the  acts 
or  omissions  of  the  employee.  In  these  contracts  the  employee 
is  bound  to  use  such  diligence,  fidelity,  and  skill  as  the  nature 
of  the  employment  requires;  the  employer  is  bound  to  pay 
the  wages  fixed  by  agreement  or  custom.  (2)  Contracts  for 
services  more  or  less  permanent,  and  giving  rise  to  certain  in- 
cidental relations  between  the  employer  and  third  persons. 
This  class  includes  those  contracts  which  place  the  employee 
under  the  directive  authority  of  the  employer  during  the  per- 
formance of  the  service.  In  these  contracts  the  employer  is 
bound  to  provide  suitable  ajjpliances  and  safeguards  according 
to  the  hazards  of  the  service;  use  due  care  in  selecting  other 
employees  upon  whose  prudence  tlie  safety  of  their  fellows  may 
depend;  permit  the  rendition  of  the  service  by  the  employee; 
and  pay  the  customary  or  stipulated  wages.  The  employee 
musf  exercise  j)ropcr  diligence,  fidelity  and  skill ;  and  must 
run  his  own  risk  of  the  ordinary  perils  of  the  service,  of  secretly 
defective  apparatus,  and  of  the  negligence  of  fellow  servants 
engaged  in  the  same  general  line  of  duty  as  himself.  The  em- 
ployer is  also  liable  to  third  persons  for  all  injury  caused  by 
the  wrongful  actions  or  omissions  of  his  employees  while  en- 
gaged in  the  transaction  of  his  business.  (3)  Contracts  whose 
main  purpose  and  effect  are  to  make  the  enijiloyee  an  inter- 
mediary between  the  employer  and  third  persons.  This  class 
of  contnicts  creates  the  relation  known  as  nqenry,  and  renders 
the  agent  th(>  representaiive  of  his  principal  in  reference  to  all 
dealings  with  third  parties  within  the  scope  of  the  authority 
conferred  upon  him  by  the  contract.  As  between  the  princij>al 
and  agent  the  reci|)r()cal  rights  and  duties  are  the  same  Jis 
between  employer  and  employee  in   the  second  class  of  con- 


186  ELEMENTARY   LAW  §  165 

tracts.  As  between  the  principal  and  third  parties  the  principal 
is  bound  by  all  acts  of  the  agent  which  from  the  nature  of  his 
employment,  or  the  conduct  of  the  principal,  such  parties  could 
reasonably  infer  that  the  agent  had  authority  to  perform,  what- 
ever secret  instructions  to  the  contrary  the  agent  may  have 
received.  An  agent  may  be  a  universal  agent,  empowered  to 
transact  all  the  business  of  his  principal  of  every  kind;  or  a 
general  ageiit,  entrusted  with  all  the  business  of  a  particular 
kind  or  at  a  particular  place ;  or  a  special  agent,  appointed  only 
for  a  particular  transaction.  It  is  the  duty  of  all  persons, 
before  entering  into  relations  with  a  principal  through  an  agent, 
to  ascertain  from  the  principal  himself,  directly  or  indirectly, 
the  existence  and  extent  of  the  agent's  authority,  and  having 
done  this  the  principal  will  be  bound  by  all  acts  of  the  agent 
within  that  authority.  These  rules  apply  to  all  species  of  agents ; 
to  some  species  such  as  brokers,  factors,  auctioneers,  attorneys 
in  fact  and  attorneys  at  law  the  law  attaches  additional  rights 
and  obligations.  (4)  Contracts  for  such  services  as  require  the 
employee  to  become  a  member  of  the  family  of  the  employer, 
and  therefore  establish  the  true  relation  of  master  and  servant, 
which  is  governed  by  the  Law  of  Family  Rights. 

Rem.  A  broker  is  an  agent  employed  to  sell  or  lease  property 
to  third  parties  on  behalf  of  his  principal.  Ordinarily,  the  prop- 
erty is  not  placed  in  his  possession.  He  must  faithfully  follow 
the  instructions  of  his  principal,  and  is  liable  for  any  negli- 
gence, want  of  punctuality,  breach  of  orders,  or  fraud.  His 
commission  becomes  due  when  he  finds  a  customer  able  and 
willing  to  comply  with  the  offer  of  the  principal,  whether  or  not 
the  principal  adheres  to  his  offer  and  completes  the  contract.  A 
factor  is  an  agent  employed  to  sell  merchandise  to  third  parties 
on  behalf  of  his  principal.  Usually,  the  goods  are  left  with  him 
for  sale.  He  also  is  bound  to  fidelity  and  diligence,  and  is  en- 
titled to  his  commission  when  a  valid  contract  for  the  sale  of  the 
property  has  been  made.  If  the  goods  are  in  his  possession  he 
has  a  lien  upon  them  for  his  commission  and  expenses.  An 
auctioneer  is  an  agent  employed  to  sell  the  property  of  another 
person  to  the  highest  bidder.  He  is  liable  to  the  vendor  for  any 
negligence  in  the  discharge  of  his  duty,  and  for  any  credit  he 
may  give  to  the  vendee.  If  he  does  not  disclose  the  name  of  his 
vendor  he  is  liable  to  the  vendee  as  if  he  were  himself  the  vendor. 
He  has  a  right  to  a  commission  for  his  services,  and  also  a  lien 


§  166  TITLE  TO   PERSONAL   PROPERTY  187 

upon  the  property  to  secure  its  payment.  An  attorney  in  fact  is 
an  agent  employed  to  transact  some  special  business,  not  only 
on  behalf  of,  but  in  the  name  of,  his  principal.  If  appointed  in 
writing  the  document  is  called  a  power  of  attorney,  and  must  be 
under  seal  if  he  is  to  execute  a  covenant  or  deed.  It  is  his  duty 
to  obey  instructions,  proceed  with  diligence  and  skill,  and  render 
an  account  of  the  business  to  the  principal  when  it  is  completed. 
An  attorney  at  law  is  a  sworn  officer  of  a  court  of  justice  who  is 
employed  by  a  party  in  a  suit  to  manage  his  cause  for  him.  His 
authority  extends  to  all  matters  necessary  to  the  progress  and 
determination  of  the  suit,  but  he  cannot  release  nor  compromise 
the  claim  without  his  client's  consent.  It  is  his  duty  to  be  true 
both  to  the  court  and  his  client;  to  manage  the  cause  with  care, 
skill,  and  integrity;  to  preserve  the  secrets  of  his  client;  and  to 
keep  him  informed  of  the  state  of  the  litigation.  He  has  a  right 
to  reasonable  compensation  for  his  services,  and  generally  a 
lien  upon  the  papers  in  his  hands  as  well  as  on  the  judgment  and 
costs  which  he  obtains.  As  an  officer  of  the  court  he  is  always 
subject  to  its  orders,  and  may  be  disbarred  for  breach  of  duty 
toward  the  client  or  the  court. 

Read:  3  BI.  Com.,  pp.  25-29; 

2  Kent  Com.,  Lect.  xxxii,  pp.  25S-261 ;    Lect.  xxxix,  pp.  536-540; 

Lect.  xli,  pp.  612-647; 
Barbour,  Rights  of  Persons  and  Property,  pp.  248-269; 
Dwight,  Law  of  Persons  and  Proi)erty,  pp.  323-346; 
Walker,  American  Law,  §§  116-124; 
Andrews,  American  Law,  §§  573,  575; 
Clark,  Elementary  Law,  §§144-151,  169-175; 
Anson,  Contracts  (Knowlton  Ed.),  pp.  329-361; 
Addison,  Contracts  (Al)bott  and  Wood  Ed.),  pp.  434-481; 
Metcalf,  Contracts,  pp.  120-130; 
Clark,  Contracts  (Tiffany  Ed.),  §§  266-278; 

1  Parsons,  Contracts,  pp.  39-118; 

2  Parsons,  Contracts,  pp.  32-59; 
/    Lawson,  Contracts,  §§  165-204. 

166.     Of  Title  by  Contract:  Contracts  of  Partnership. 

A  contract  of  partnership  is  a  contract  by  which  two  or  more 
persons  unite  their  property  or  labor  or  both  in  some  lawful 
business,  and  agree  to  divide  the  profits  and  share  the  losses  of 
their  common  enterpri.se  in  certain  proportions.  It  is  es.sential 
to  this  contract  that  the  risks  and  losses  be  apportioyiahle  as 
well  as  the  profits.  An  agreement  for  services  to  be  compen- 
sated for  by  a  share  of  the  profits,  or  for  a  loan  to  be  j)aid  onlv 
in  case  the  enterprise  succeeds,  does  not  constitute  a  [)a:tncrshi[) 


188  ELEMENTARY   LAW  §  166 

A  partnership  contract  may  he  oral  or  in  loriting,  and  may  pre- 
scribe in  detail  the  reciprocal  rights  and  duties  of  the  partners, 
or  may  leave  them  to  be  determined  by  implication  of  law  from 
the  nature  and  usages  of  the  business.  In  the  absence  of  par- 
ticular stipulations  each  partner  acquires  an  interest,  jointly 
with  the  others,  in  all  the  partnership  assets;  becomes  respon- 
sible for  all  the  partnership  debts;  and  is  empowered  to  bind 
the  other  partners  by  his  acts  in  any  transaction  relating  to  the 
partnership.  By  this  contract  the  partners  are  bound  as  between 
themselves.  But  as  between  the  partnership  or  its  members  and 
third  parties,  the  contract  and  its  obligations  are  what  the 
partners  by  words  or  conduct  hold  them  out  to  be  in  their  deal- 
ings with  third  parties,  unless  such  parties  are  already  acquainted 
with  the  provisions  of  the  contract  itself.  Thus  if  a  person, 
who  is  not  a  member  of  the  firm,  represents  himself  to  be  a 
partner,  or  acts  as  such,  he  is  liable  to  third  persons  who  rely 
upon  his  representations  as  if  he  were  an  actual  partner;  and 
if  the  other  partners  openly  endorse  or  silently  acquiesce  in 
his  representations  his  acts  become  binding  also  upon  them.  A 
partnership  may  be  dissolved  by  its  own  limitation,  or  by  mutual 
consent,  or  by  the  death  or  withdrawal  of  one  of  its  members,  or 
by  their  bankruptcy  or  that  of  the  firm,  or  by  a  decree  of  a 
court  of  equity  for  causes  which  render  its  continuance  un- 
reasonable or  unjust.  Upon  its  dissolution  the  partners  are 
entitled  to  their  pro  rata  share  of  the  assets  remaining  after  the 
debts  are  paid.  To  guard  against  liability  to  third  persons, 
for  subsequent  transactions  in  the  partnership  name,  notice 
of  the  dissolution  should  be  given  to  the  public  at  large  and 
to  all  persons  who  have  had  dealings  with  the  partnership 
during  its  continuance.  The  same  precaution  must  be  taken 
by  a  retiring  partner  to  protect  himself  against  partnership 
debts  incurred  after  his  retirement. 

Rem.  The  principal  inconveniences  attending  a  partnership 
enterprise  arise  out  of  its  liability  to  dissolution  by  the  death  or 
withdrawal  of  a  member,  and  out  of  the  responsibility  of  each 
one  of  the  partners  for  all  the  partnership  debts.  To  avoid  the 
former  difficulty  a  partnership  often,  in  modern  times,  assumes 
the  form  of  a  joint-stock  company ;  in  which  the  capital  is  divided 
into  equal  shares,  a  certain  number  of  which  are  held  by  each 


§  167  TITLE   TO   PERSONAL   PROPERTY  189 

partner  and  are  transferable  by  him  at  j)lea.sure,  thus  substitut- 
ing another  partner  for  himself.  In  many  respeets  these  com- 
panies resemble  corporations,  —  having  a  j)erpetual  existence, 
acting  through  appointed  officers,  and  known  by  a  common 
name;  but  their  members  are  still  liable  individually  for  all  the 
partnership  obligations.  In  many  States  these  companies  are 
organized  under  local  statutes  which  clothe  them  with  ordinary 
corporate  powers  and  immunities.  The  latter  difficulty  is  met 
by  organizing  the  firm  as  a  limited  jmrtvership.  This  organiza- 
tion is  composed  of  one  or  more  general  partners  whose  liability 
for  the  partnership  debts  is  unlimited,  and  of  one  or  more  special 
partners  who  contribute  sums  to  the  common  stock,  and  whose 
responsibility  does  not  extend  beyond  the  amount  contributed. 
These  partnerships  are  created  under  local  statutes  which  recjuire 
such  public  notice  of  their  formation,  and  internal  relations,  as 
will  secure  possible  creditors  against  false  impressions  as  to  the 
financial  condition  and  liability  of  the  members  of  the  firm. 

Read:  .3  Kent  Com.,  Lect.  xliii,  pp.  23-69; 
Walker,  American  Law,  §§  96-101; 
Andrews,  American  Law,  §  574; 
Clark,  Elementary  Law,  §  236; 

Addison,  Contracts  (Abbott  and  Wood  Ed.),  pp.  792-804; 
Metcalf,  Contracts,  pp.  131-160; 
1  Parsons,  Contracts,  pp.  144-216; 
Ante,  §  23. 

§  167.     Of  Title  by  Contract:  Contracts  of  Insurance. 

A  contract  of  insurance  is  a  contract  by  wliich  one  person 
undertakes  to  pay  to  another  person  a  sum  of  money  upon  the 
happening  of  a  future  contingent  event.  These  contracts  are 
of  two  classes:  (1)  Contracts  to  indemnify  for  a  future  con- 
tingent loss ;  (2)  Contracts  to  pay  a  definite  sum  of  money  upon 
the  happening  of  a  future  event  which  is  either  contingent  in 
itself  or  contingent  as  to  the  time  of  its  occurrence.  To  the  first 
class  belong  contracts  of  marine  insurance  which  provide  for 
an  indemnity  in  case  of  the  loss  or  damage  of  a  ship,  freight, 
or  cargo  from  the  perils  of  the  sea;  contracts  of  fire  insurance 
which  provide  for  an  indemnity  in  case  of  the  loss  or  injury  of 
property  of  any  kind  from  fire ;  and  some  forms  of  the  con- 
tract of  accident  insurance  which  provide  for  an  indemnity  i»i 
case  of  loss  or  damage  to  person  or  property  from  various 
fortuitous  calamities.  In  these  contracts  of  insurance  the  in- 
demniti/  is  jnea.surcd  hy  the  actual  anunuit  of  the  pecuniary  loas, 


190  ELEMENTARY   LAW  §  167 

not  exceeding  the  maximum  amount  named  in  the  contract. 
To  the  second  class  belong  contracts  of  life  insurance  wliich 
provide  for  the  payment  of  a  definite  sum  of  money  upon  the 
death  of  a  particular  person,  or  upon  a  given  date  if  the  person 
should  until  then  survive;  and  those  contracts  of  accident  in- 
surance which  stipulate  for  the  payment  of  a  definite  sum  in 
case  the  accident  occurs.  The  contract  of  insurance  is  ordinarily 
in  writing  and  is  called  a  policy  of  insurance;  the  consideration 
paid  by  the  insured  is  called  the  ■premium.  Any  fraud  or  con- 
cealment by  the  insured  as  to  the  nature  of  the  risk  assumed  by 
the  insurer  avoids  the  contract,  and  any  failure  of  the  insured 
to  observe  its  numerous  special  stipulations  forfeits  his  right 
to  avail  himself  of  its  provisions. 

Rem.  An  insurance  contract  is  in  its  nature  a  wagering  con- 
tract, being  in  effect  a  bet  that  the  event  will  or  will  not  occur. 
Such  contracts  are  generally  void,  but  certain  species  of  them, 
on  account  of  their  practical  utility,  are  now  regarded  as  legiti- 
mate. That  which  distinguishes  contracts  of  insurance  from 
unlawful  wagering  contracts  is  the  fact  that  in  them  the  condi- 
tion for  the  payment  is  not  merely  the  occurrence  of  a  future 
contingent  event,  but  the  infliction  by  its  occurrence  of  a  loss 
upon  the  person  insured,  which  loss  the  insurer  undertakes  in 
whole  or  in  part  to  bear.  Hence  the  insured  must  have  an  in- 
surable interest  in  the  person  or  property  which  forms  the  sub- 
ject of  the  contingent  loss.  An  insurable  interest  is  a  pecuniary 
interest  which  may  be  prejudicially  affected  if  the  loss  occurs. 
An  owner,  bailee,  lessee,  lienor,  trustee,  or  agent  has  an  insur- 
able interest  in  property.  Every  person' has  an  insurable  interest 
in  his  own  hfe,  health,  and  safety,  and  in  those  of  other  persons 
upon  whom  he  has  a  legal  claim,  present  or  prospective,  for  sup- 
port, or  for  services,  or  for  the  payment  of  money. 

Read:  2  Bl.  Com.,  pp.  458-461; 

3  Kent  Com.,  Lect.  xlviii,  pp.  253-352;   Lect.  1,  pp.  365-376; 

Walker,  American  Law,  §§  247-251; 

Andrews,  American  Law,  §  580; 

Clark,  Elementary  Law,  §  143; 

Darlington,  Personal  Property,  pp.  168-171; 

Smith,  Personal  Property,  §§  121-129; 

Addison,  Contracts  (Abbott  and  Wood  Ed.),  pp.  674-750; 

2  Parsons,  Contracts,  pp.  350-488. 


§  168  TITLE   TO   PERSONAL   PROPERTY  191 

§  168.     Of  Title  by  Contract:  Contracts  of  Debt. 

A  contract  of  debt  is  a  contract  by  which  one  person  under- 
takes to  pay  to  another  a  specific  or  definitely  ascertainable 
sum  of  money.  This  contract  may  arise  out  of  other  contracts, 
as  where  goods  are  sold  and  delivered  and  the  price  has  become 
due;  or  it  may  be  independent  of  other  contracts,  as  where 
money  is  loaned  to  be  repaid  by  the  borrower.  It  may  take 
the  form  of  an  express  contract  under  seal,  as  in  a  covenant 
to  pay  rent ;  or  of  a  simple  written  contract,  as  in  a  promissory 
note ;  or  of  a  parol  contract,  as  in  an  agreement  to  pay  a  certain 
reward  for  lost  articles;  or  of  an  implied  contract,  as  where 
services  of  a  fixed  value  have  been  rendered  and  accepted ;  or 
of  a  quasi  contract,  as  where  a  judgment  for  damages  has  been 
given  and  remains  unsatisfied.  The  essence  of  the  contract,  in 
these  and  all  other  cases  of  debt,  is  the  agreement  to  pay  the 
money  when  it  becomes  due.  A  contract  of  debt,  unlike  many 
other  contracts,  is  assignable  by  the  creditor  without  the  consent 
of  the  debtor,  and  the  assignee  may  proceed  to  collect  the  money 
by  a  suit  in  his  own  name  in  a  court  of  equity,  or  by  an  action 
at  law  in  the  name  of  the  original  creditor,  or  in  some  States  by 
an  action  in  his  own  name.  Notice  of  the  assignment  should 
be  given  to  the  debtor,  since  if  without  notice  he  pays  the  money 
to  the  original  creditor  in  good  faith  the  debt  will  be  discharged. 
Thfe  assignee  takes  the  debt  subject  to  all  the  defences  which 
the  debtor  might  have  set  up  against  the  assignor,  and  has  no 
claim  against  the  assignor  in  case  the  debt  proves  uncollectible 
unless  under  some  additional  contract  of  indemnity  collateral 
to  the  assignment.  A  single  exception  to  this  rule  exists  in 
reference  to  negotiable  bills  and  notes,  when  assigned  by  a  con- 
tract of  indorsement. 

Rem.  The  obligation  created  by  a  contract  of  debt  is  dis- 
charged either  by  the  actual  j)aymcnt  of  the  money  at  the  proper 
time,  or  by  the  tender  of  the  money  to  the  creditor  at  the 
proper  time  and  place  and  his  refusal  to  accept  it.  A  fender  con- 
sists in  the  uiicoiKJitional  otl'cr  to  the  creditor  by  the  (ie])tor  of 
the  precise  amount  of  the  debt,  in  good  and  lawful  currency,  in 
such  a  manner  as  to  l)riiig  the  money  within  the  inunediati"  j)hys- 
ical  control  of  tiie  creditor  should  he  choose  to  receive  it.  The 
tender  once  made  must  be  kept  in  force  by  the  constant  readi- 
ness of  the  debtor  to  make  good  the  offer,  or  it  will  lose  its  legal 


192  ELEMENTARY  LAW  §  169 

efficacy.  A  ■payment  made  by  a  debtor  to  a  creditor  to  whom  he 
owes  several  debts  may  be  appropriated  by  the  debtor  to  any 
debts  or  parts  of  debts  he  pleases  by  giving  notice  to  the  creditor 
to  that  effect ;  otherwise,  the  creditor  may  apply  the  payment  as 
he  deems  best.  Payment  by  check  or  7iote  does  not  discharge  the 
original  indebtedness  until  the  note  or  check  is  paid,  unless  by 
virtue  of  some  special  agreement  or  some  provision  of  the  local 
law.  Interest,  when  not  a  part  of  the  original  debt,  is  allowed 
upon  a  debt  past  due  as  damages  for  the  delay  in  payment,  and 
its  amount  is  generally  fixed  by  law.  Interest  agreed  upon  be- 
tween the  parties,  in  excess  of  the  legal  rate,  is  usiiry,  and  any 
contract  or  device  by  which  a  creditor  endeavors  to  secure  it  is 
void  in  law,  and  is  visited  with  penalties  differing  according  to 
local  statutes. 

Read:  2  Bl.  Com.,  pp.  454-466; 
3  Bl.  Com.,  pp.  303,  304,  notes; 
Walker,  American  Law,  §  212; 
Andrews,  American  Law,  §  572 ; 
Darlington,  Real  Property,  pp.  139-150,  155-164; 
Brantly,  Personal  Property,  §§  265-287; 
Smith,  Personal  Property,  §§  141,  142; 
Langdell,  Contracts,  §§  99-103,  130-133; 
Wharton,  Contracts,  §§  852-865,  923-995; 
Anson,  Contracts  (Knowlton  Ed.),  pp.  218-236; 
Addison,  Contracts  (Abbott  and  Wood  Ed.),  pp.  1268-1320; 
Clark,  Contracts  (Tiffany  Ed.),  §§  193-201; 
Bishop,  Contracts  (Early  Ed.),  §§  1177-1199; 

1  Parsons,  Contracts,  pp.  217-233; 

2  Parsons,  Contracts,  pp.  614-646; 

3  Parsons,  Contracts,  pp.  102-153; 
Lawson,  Contracts,  §§  351-367,  410-418. 

§  169.     Of  Title  by  Contract:  Contracts  of  Indorsement. 

A  contract  of  indorsement  is  a  contract  by  which  the  holder  of 
a  negotiable  promissory  note  or  bill  of  exchange  agrees  with 
another  person,  to  whom  he  at  the  same  time  assigns  the 
debt  evidenced  by  the  bill  or  note,  that  he  will  himself  pay  that 
debt  to  the  assignee  or  his  assigns  in  case  the  prior  parties  to 
the  note  or  bill  fail  to  pay  it  when  it  becomes  due.  A  promissory 
note  is  an  unconditional  written  promise  to  pay  a  definite  sum 
of  money  to  a  definite  person  at  a  definite  future  time.  When 
made  payable  to  the  payee  only  it  is  a  non-negotiable  note; 
when  made  payable  to  the  payee  or  his  order  or  to  bearer  it  is  a 
negotiable  note.  A  negotiable  note  is  good  against  the  maker  in 
the  hands  of  any  bona  fide  holder  who  took  it  for  a  valuable 


§  169       TITLE  TO  PERSONAL  PROPERTY       1  6 

consideration,  before  its  maturity  and  in  the  ordinary  course  of 
business,  whatever  defences  may  be  available  to  the  maker  as 
between  himself  and  the  original  payee.  A  negotiable  note 
made  payable  to  the  payee  or  bearer  is  assignable  by  mere 
delivery;  one  made  payable  to  the  payee  or  order  must  be 
transferred  by  indorsement  and  delivery.  IndorseTTvent  con- 
sists in  the  writing  by  the  payee  of  his  own  name  across  the 
back  of  the  note,  with  or  without  words  designating  the  person 
to  whom  the  note  is  thereby  assigned.  From  this  indorsement, 
unless  qualified  by  further  written  words,  the  law  implies  a 
contract  on  the  part  of  the  indorser  in  favor  of  all  subsequent 
holders  of  the  note  who  take  it  in  good  faith  in  the  ordinary 
course  of  business,  before  maturity,  and  for  valuable  con- 
sideration, that  the  note  shall  be  paid  at  maturity  according  to 
its  terms,  provided  the  requisite  demand  and  protest  be  made 
and  proper  notices  be  given  by  the  person  who  shall  at  that 
time  be  its  holder.  Every  successive  indorser  enters  into  the 
same  contract  with  all  subsequent  bona  fide  holders.  When  an 
indorsed  note  matures  it  is  the  duty  of  the  holder  to  'present 
it  for  payment  at  the  place  contemplated  by  the  parties,  and  if 
not  then  jiaid  to  have  the  note  at  once  protested  by  a  notary, 
and  formal  notices  of  the  default  of  payment  served  with  rea- 
sonable diligence  upon  all  the  indorsers  to  whom  he  intends  to 
look  for  payment.  Indorsers  not  thus  notified  are  released  from 
further  liability  to  him.  So  far  as  the  contract  of  indorse- 
ment is  concerned,  the  same  rules  apply  to  a  bill  of  exchange. 
A  bill  of  exchange  is  an  open  letter  of  request  from  one  person 
to  another,  desiring  him  to  pay  a  certain  sum  of  money  at  a 
certain  time  to  a  certain  third  person,  and  charge  the  amount 
paid  to  the  person  by  whom  the  bill  is  drawn.  It  is  the  duty 
of  the  third  person,  or  payee,  to  present  the  bill  to  the  second 
person,  or  drawee,  witiu'n  a  reasonable  time;  and  of  the 
drawee,  if  he  intends  to  pay  it  at  maturity,  to  write  on  it  his 
acceptance ;  after  which  its  legal  effect  as  between  the  drawee 
and  payee  is  that  of  a  promissory  note.  Should  the  drawee 
refuse  to  accept  the  bill,  the  payee  must  protest  it  for  non- 
acceptance  and  give  the  proper  notice  to  the  drawer  and 
other  prior  parties.  If  a  bill  of  exchange  is  made  payable  to 
order  or  bearer  it  will    be  negotiable  and  can  be  transferred  by 

13 


194  ELEMENTARY  LAW  §  170 

delivery  or  by  indorsement  and  delivery;   the  liabilities  thereby 
created  being  the  same  as  in  the  case  of  promissory  notes. 

Rem.  The  term  indorsement  is  used  in  law,  in  a  general 
sense,  to  denote  any  thing  written  on  the  back  of  a  document, 
such  as  the  return  of  a  sheriff  upon  the  back  of  his  writ,  the 
written  finding  of  a  grand  jury  upon  the  back  of  an  indictment, 
etc.  Its  technical  meaning,  always  supposed  to  be  intended 
unless  contraindicated  either  by  the  nature  of  the  document 
or  by  the  context,  is  the  one  given  in  the  definition  of  the 
contract  of  indorsement,  and  comprises  both  an  assignment 
and  a  guaranty.  As  such  it  is  predicable  only  of  negotiable 
paper,  including  bills  of  exchange  and  promissory  notes  made 
payable  to  bearer  or  order,  and  in  some  cases  also  embracing 
checks,  certificates  of  deposit,  bills  of  lading,  corporate  bonds, 
and  even  certificates  of  stock.  The  indorsement  of  a  non-negoti- 
able instrument  may  operate  as  an  assignment  only,  not  as  a 
guaranty;  and  the  assignee  will  take  it  subject  to  all  the  de- 
fences existing  between  the  original  parties.  The  indorsement 
of  a  negotiable  instrument  is  restricted  to  a  mere  assignment 
by  including  the  words  "without  recourse,"  or  otherwise  stipulat- 
ing that  no  liability  shall  attach  to  the  indorser.  The  indorse- 
ment of  a  negotiable  instrument  by  a  person  not  already  a  party 
to  the  instrument  is  called  an  indorsement  "in  blank,"  and  can- 
not operate  as  an  assignment,  since  he  has  nothing  to  assign. 
By  some  authorities  the  effect  of  such  an  indorsement  is  to  in- 
troduce the  person  into  the  note  as  a  co-maker;  others  hold 
that  he  becames  a  guarantor.  The  Law  of  Bills  and  Notes,  to 
which  this  contract  belongs,  is  one  of  the  most  important  sub- 
divisions of  the  Law  of  Contracts.  To  secure  uniformity  in 
its  rules  as  between  our  American  States,  its  various  provisions 
have  been  codified  into  a  "  Negotiable  Instruments  Law,"  which 
has  been  adopted  by  many  of  them  as  a  statute. 

Read:  2  Bl.  Com.,  pp.  466-470; 

3  Kent  Com.,  Lect.  xliv,  pp.  71-121; 

Walker,  American  Law,  §§  215-224; 

Andrews,  American  Law,  §§  582,  583; 

Clark,  Elementary  Law,  §  141 ; 

Dariington,  Personal  Property,  pp.  123-125; 

Addison,  Contracts  (Abbott  and  Wood  Ed.),  pp.  751-791; 

1  Parsons,  Contracts,  pp.  238-292. 

$  170.     Of    Title    by    Contract:    Contracts    of    Guaranty    and 
Suretyship. 

A  contract  of  guaranty  and  suretyship  is  a  contract  by  which  the 
promisor  agrees  that  another  contract,  made  by  a  third  person 


§  170  TITLE  TO   PERSONAL  PROPERTY  195 

with  the  promisee,  shall  be  fulfilled;  and  that  in  case  it  should 
not  be  fulfilled  he  will  himself  indemnify  the  promisee  for  any 
loss  occasioned  by  its  non-fulfilment.  This  contract  is  always 
collateral  to  and  dependent  upon  some  valid  primary  contract 
between  the  third  party  and  the  promisee.  It  must  be  in 
writing,  under  the  Statute  of  Frauds.  If  made  at  the  same 
time  with  the  primary  contract,  the  consideration  of  that  con- 
tract will  support  this  also;  if  made  afterwards,  it  must  be 
based  upon  a  new  and  valuable  consideration  of  its  own.  The 
promisee  must  formally  accept  the  guaranty  and  notify  the 
guarantor  thereof,  unless  such  acceptance  is  impHed  from 
the  nature  of  the  transaction.  A  guaranty  may  be  general, 
intended  to  secure  any  person  to  whom  the  ownership  of  the 
primary  obligation  may  be  transferred,  as  in  the  guaranty  of 
a  negotiable  note,  and  is  then  assignable  with  the  primary  con- 
tract; or  it  may  be  special,  intended  to  protect  only  a  definite 
promisee,  and  is  not  then  transferable  until  after  the  primary 
obUgation  has  matured  and  the  right  of  action  on  the  guaranty 
has  become  complete.  The  liability  of  a  guarantor  to  fulfil 
the  primary  obligation,  or  to  indemnify  the  promisee,  does  not 
arise  until  the  promisee  has  exhausted  all  his  legal  remedies 
against  the  original  promisor,  or  until  the  impossibiHty  of 
obtaining  any  relief  against  him  has  become  so  apparent  as 
to  render  any  effort  to  pursue  him  futile  and  unwise. 

Rem.  The  Uability  of  a  guarantor  or  surety  is  measured 
strictly  by  his  contract.  When  the  guaranty  is  limited  to  a  par- 
ticular act  of  the  third  person  the  promisee  must  give  immediate 
notice  of  any  default  to  the  guarantor,  if  it  be  necessary  that  the 
guarantor  should  know  it  in  order  to  protect  himself.  If  the 
guaranty  is  a  continuing  guaranty,  covering  a  number  of 
future  obligations,  it  is  sufficient  to  give  notice  after  all  the 
obligations  have  accrued.  A  guarantor  or  surety  is  released 
from  liability  if  the  promisee  enters  into  a  new  contract  with  the 
original  promisor  which  supersedes  the  old,  or  makes  an  agree- 
ment with  him  upon  a  new  consideration  to  extend  the  time 
for  the  performance  of  the  primary  obligation,  or  grants  him 
any  other  indulgence  from  which  the  guarantor  has  sufi"ered 
loss,  unless  the  guarantor's  consent  thereto  has  been  obtained. 
In  order  to  protect  himself  a  guarantor  may  satisfy  the  pri- 
mary obligation  when  it  becomes  due;  or  may  invoke  the  aid 
of  a  court  of  equity  to  compel  the  original  promi.s-or  to  perform  it 


196  ELEMENTARY   LAW  §  170 

according  to  its  terms,  or  to  force  the  promisee  to  pursue  his 
remedy  against  the  original  promisor  without  delay.  Where 
a  guarantor  himself  satisfies  the  obligation  he  is  entitled  to  re- 
muneration from  the  original  promisor  and  is  subrogated  to 
all  the  rights  and  securities  held  by  the  promisee  against  him 
for  the  enforcement  of  his  claim ;  and  if  he  is  one  of  several 
guarantors  of  the  same  primary  obligation,  equity  will  compel 
the  others  to  contribute  their  pro  rata  shares. 

Read:  3  Kent  Com.,  Lect.  xliv,  pp.  121-124; 
Walker,  American  Law,  §§  24-^246; 
Andrews,  American  Law,  §  581 ; 
Clark,  Elementary  Law,  §  142; 
Darlington,  Personal  Property,  pp.  150-155; 
Addison,  Contracts  (Abbott  and  Wood  Ed.),  pp.  648-674; 

1  Parsons,  Contracts,  pp.  31-38; 

2  Parsons,  Contracts,  pp.  3-31. 


§  17J  FAMILY   RIGHTS  197 


CHAPTER   III 

OF    FAMILY    RIGHTS 

§  171.     Of  the  Nature  and  Classes  of  Family  Rights. 

Family  rights  are  those  rights  which  arise  out  of  the  domestic 
or  family  relations.  Some  of  these  rigiits  are  recij)roeal  rights 
between  the  members  of  the  family  themselves;  others  inhere 
in  them,  by  virtue  of  their  family  relation,  against  the  outside 
world.  All  of  them  are  in  addition  to  the  personal  and  property 
rights  which,  as  individuals,  the  members  of  the  family  pos- 
sess, though  sometimes  qualifying  or  restricting  them.  From 
the  fact  that  these  rights  grow  out  of  certain  definite  relations 
they  are  often  called  relative  rights.  Of  such  relations  there  are 
five:  (1)  Husband  and  Wife;  (2)  Parent  and  Child;  (3)  Guar- 
dian and  Ward;  (4)  Master  and  Servant;  (5)  The  Family 
Head  and  his   Dependants. 

Rem.  Originally  our  law  recognized  only  the  household  head 
as  amenable  to  its  rules  and  held  him  responsible  for  th(>  conduct 
of  his  wife,  children,  wards,  servants,  and  dependants,  giving 
him  at  the  same  time  over  them  a  practically  absolute  control. 
Thus  family  rights,  so  far  as  the  law  was  concerned,  comprised 
only  the  rights  and  obligations  of  the  hous(>hold  head  to  the  out- 
side world ;  the  reciprocal  rights  of  the  members  of  the  family, 
and  the  rights  and  duties  of  the  inferior  members  in  reference  to 
third  parties,  being  substantially  ignored.  jNIany  vestiges  of  this 
doctrine  still  remain,  though  for  the  past  two  centuries  a  tendency 
has  manifested  itself,  rapidly  increasing  in  the  last  fifty  years,  to 
treat  all  members  of  the  family  as  individually  sul)jcct  to  the  law 
and,  as  far  as  possible,  independent  of  one  another.  'J'he  influ- 
ence of  this  tendency  upon  the  law  relating  to  family  rights  has 
been  to  introduce  confusion  and  uncertainty  into  a  system  once 
simple  and  complete.  The  authority  and  responsibility  of  the 
house-father  has  been  diminished  by  statutes  and  decisions  to 
an  indefinite  extent.  The  independence  of  wives,  children,  and 
other  inferiors  has  been  asserted,  but  without  specifying  the 
limits  to  which  it  extends.    The  reciprocal  rights  of  the  members 


198  ELEMENTARY   LAW  §  172 

of  the  family  have  been  declared,  but  without  providing  any 
adequate  remedies  to  enforce  them.  Such  evils  are  inevitable  in 
the  transition  from  an  established  policy  based  on  ages  of  expe- 
rience to  one  arising  out  of  theory  and  speculation,  and  can  only 
be  removed  by  patient  wrestling  with  the  many  problemis  which 
modern  social  and  domestic  life  presents. 

Read:  1  Bl.  Com.,  p.  422; 

Schouler,  Domestic  Relations,  §§  1-10. 


SECTION    I 

OF  THE   RIGHTS   ARISING   OUT    OF    THE    RELATION   OF   HUSBAND 

AND    WIFE 

§  172.     Of  Marriage. 

The  relation  between  husband  and  wife  is  created  by  mar- 
riage. Marriage,  as  an  act  creating  a  relation,  is  a  form  of 
contract;  to  which  parties,  a  consideration,  a  subject-matter, 
and  an  actual  proposal  and  acceptance  are  necessary.  The 
'parties  are  a  man  and  woman  who,  under  the  current  rules 
of  law,  are  qualified  to  marry.  The  consideration  is  the  mutual 
promise  of  each  party  to  enter  then  and  there  into  the  marriage 
state.  The  suhject-viatter  is  the  marital  relation  with  all  its 
duties  and  privileges  as  prescribed  by  law.  The  proposal  and 
acceptance  is  the  intelligent  and  voluntary  consent  of  the  parties 
to  take  one  another  as  husband  and  wife.  A  contract  of  mar- 
riage may  be  made  by  any  acts  or  words  by  which  the  parties 
express  to  one  another  their  consent  to  become,  from  that 
moment  onward,  husband  and  wife  except  in  States  whose 
statutes  re(|uire  certain  ceremonies  to  be  observed;  and  even 
in  many  of  these  States  the  marriage  will  be  valid  where  the 
ceremonies  are  omitted  though  the  parties  may  be  punished 
personally  for  their  offence.  A  marriage  contract,  valid  by  the 
laws  of  the  State  where  it  takes  place,  is  valid  in  all  other  States 
unless  it  is  there  considered  contrary  to  good  morals  or  sound 
views  of  public  policy.  The  relation  created  by  the  contract 
of  marriage  involves  a  change  in  the  status  of  both  parties;  of 
the  husband  in  reference  to  the  wife  and  to  all  other  persons 
with  whom  he  comes  into  legal  contact  through  her  agency  or 
on  her  account ;  of  the  wife,  not  only  as  to  the  husband,  but 
as  to  all  the  world.     The  rights  and  obligations  of  this  new 


§  172  HUSBAND  AND  WIFE  199 

status  are  defined  by  law,  and  the  parties  have  no  power  to 
vary  them  nor  to  terminate  the  status,  though  the  State  can 
do  so  at  its  pleasure. 

Rem.  The  contract  of  marriage  is  usually  the  fulfilment  of  a 
prior  contract,  —  the  contract  to  marry;  which  also  rests  upon 
the  consideration  of  mutual  promises,  and  a  breach  of  which,  by 
any  party  competent  to  make  it,  is  actionable  at  law.  The 
formal  distinction  between  these  two  contracts  is  that  the  con- 
tract to  marry  is  made  per  verba  de  futiiro,  or  words  which  speak 
concerning  the  future,  near  or  remote;  while  the  contract  of 
marriage  is  made  per  verba  de  presenti,  or  words  which  speak 
concerning  the  present  moment.  To  be  legally  qualified  to  enter 
into  a  contract  of  marriage  the  parties  must  be  (1)  Of  sufficient 
age;  (2)  Of  sound  mind  ;  (3)  Of  physical  capacity ;  (4)  Not  re- 
lated to  one  another  within  the  prohibited  degrees ;  (5)  Not 
involved  in  another  existing  marital  relation.  The  ar/p  anciently 
required  was  twelve  for  females  and  fourteen  for  males ;  at 
present  local  statutes  usually  prescribe  an  age  much  more  ad- 
vanced. The  sound  mind  consists  in  the  mental  ability,  at  the 
instant  of  the  marriage,  to  comprehend  the  nature  of  the  con- 
tract and  its  conseciuences,  and  sufficient  will  power  to  enter  into 
it  with  the  other  party  without  external  control.  The  physical 
capacity  of  both  the  parties  must  be  such  as  to  enable  them  to 
fulfil  the  main  purpose  of  the  marriage  relation,  which  is  the  ])ro- 
creation  of  children  ;  and  the  permanent  impotence  of  either,  at 
the  date  of  the  marriage,  renders  it  invalid.  The  prohibited  de- 
grees include  all  lineal  relationship,  the  collateral  degrees  of 
brother  and  sister,  and  in  some  States  those  of  uncle  and  niece  and 
of  aunt  and  nephew.  A  party  is  involved  in  an  existing  marriage 
relation  when  having  another  husband  or  wife  living  and  undi- 
vorced.  A  contrnct  of  marringe  valid  on  its  face  is  void  if  either 
party  was  frnndxdcntly  misled  by  the  other  in  reference  to  any 
matter  essential  to  the  honor  and  perfection  of  the  marriage  rela- 
tion, or  has  been  coerced  into  the  marriage  by  the  exercise  of  un- 
lawful physical  control ;  and  can  be  annulled,  and  the  status  of 
the  parties  set  at  rest,  by  a  decree  in  equity,  imless  some  special 
proceeding  has  been  provided  under  the  local  law. 

Read:  1  Bl.  Com.,  pp.  433-440; 

2  Kent  Com.,  Lect.  xxvi,  pp.  75-93; 

Barbour,  Riglits  of  Persons  jirul  Property,  pp.  127-134; 

Dwiglit,  L:i\v  of  Persons  and  Property,  pp.  142-159; 

Walker,  Ameririvn  Law,  §§  102,  103; 

Andrews,  American  Law,  §§  473-487; 

Clark,  lOlementary  Law,  §  152; 

Wharton,  Conflict  uf  Laws,  §§  126-182; 


200  ELEMENTARY   LAW  §  173 

Schouler,  Domestic  Relations,  §§  11-34; 
Tiffany,  Domestic  Relations,  §§  1-30; 
Long,  Domestic  Relations,  §§  3-57; 
Addison,  Contracts,  pp.  834-864; 
2  Parsons,  Contracts,  pp.  60-83,  593-602; 
2  Greenleaf,  Evidence,  §§  460-464. 


173.     Of  Divorce. 

A\  marital  relation  once  validly  contracted  is  dissoluble  only 
by  the  death  of  one  of  the  parties  or  by  divorce.  A  divorce  may 
be  granted  by  the  State  through  its  courts  or  legislature  for  any 
cause  it  deems  sufficient,  and  independently  of  the  consent  or 
dissent  of  the  parties,  although  in  practice  it  rarely  interferes 
between  them  unless  one  of  them  invokes  its  aid.  Divorces 
are  of  two  kinds :  (1)  Divorce  a  vinculo,  or  from  the  bond  of 
marriage ;  (2)  Divorce  a  mensa  et  thoro,  or  from  bed  and  board 
only.  Divorce  a  vinculo  severs  the  marriage  tie  completely  and 
forever,  and  unless  granted  subject  to  j)rescribed  conditions 
leaves  each  party  free  to  contract  another  marriage.  Divorce 
a  mensa  et  thoro  merely  suspends  the  marital  relation,  and 
separates  the  wife  from  the  husband's  household  under  such 
provisions  for  her  personal  freedom  and  support  as  the  court 
may  ordain.  When  a  divorce  a  vinculo  is  granted  to  a  wife  from 
a  husband  owning  property  or  receiving  income  the  court  may 
order  him  to  pay  her  a  certain  sum  as  alimony,  either  in  gross 
or  in  instalments;  and  may  enforce  its  order  by  imprisoning 
him  for  contempt.  The  custody  of  the  minor  children,  if  any, 
may  be  awarded  by  the  court  to  either  party  or  to  a  third  person, 
as  the  interests  of  the  children  may  demand.  A  decree  of 
divorce  granted  in  one  State,  by  a  court  having  jurisdiction  over 
both  the  subject-matter  and  the  parties,  is  valid  in  all  other 
States  unless  at  variance  with  their  political  or  moral  standards. 
A  divorce  obtained  by  collusion  between  the  parties,  or  by 
fraud,  is  void. 

Rem.  The  recognized  causes  for  divorce  vary  with  the  State, 
and  with  the  changes  in  public  opinion.  Among  them  are  adul- 
tery, cruelty,  continued  desertion,  incurable  insanity,  imprison- 
ment for  life,  and  incompatibility  of  temper.  The  voluntary 
separation  of  a  husband  and  wife,  without  the  concurrent  action 
of  the  State,  is  not  a  divorce ;  though,  if  the  agreement  of  sepa- 


§  174  HUSBAND   AND   WIFE  201 

ration  is  a  reasonable  one,  a  court  of  equity  can  enforce  it  at  the 
instance  of  either  party.  Where  a  husband  abandons  his  wife,  or 
becomes  permanently  incapacitated  to  fulfil  his  duties,  the  mar- 
riage relation  is  not  thereby  affected,  though  for  many  business 
purposes  the  wife  is  then  regarded  as  a  feme  sole. 

Read:  1  Bl.  Com.,  pp.  440,  441; 

2  Kent  Com.,  Lect.  xxvii,  pp.  95-118,  125-128; 

Barbour,  Rights  of  Persons  and  Property,  pp.  134,  135; 

Dwight,  Law  of  Pensons  and  Property,  pp.  159-190; 

Walker,  American  Law,  §  106; 

Andrews,  American  Law,  §§  488-497; 

Clark,  Elementary  Law,  §§  157,  158; 

Wharton,  Conflict  of  Laws,  §§  204-239  g; 

Schonler,  Domestic  Relations,  §§  227-234; 

Tiffany,  Domestic  Relations,  §§  93-109; 

Long,  Domestic  Relations,  §§  129-146; 

2  Parsons,  Contracts,  pp.  84,  85,  603-606; 

2  Greenleaf,  Evidence,  §§  40-58; 

Maxwell,  Pleading  and  Practice,  §§  495-524. 


§  174.     Of  the  Effect  of  Marriage. 

The  effect  of  nuirriagc  is  the  union  of  the  parties  in  one  legal 
person,  represented  by  the  person  of  the  husband  in  whom 
the  personality  of  the  wife  was  once  totally,  and  is  still  to  a  con- 
siderable extent,  submerged.  Under  the  older  law  all  the  rights, 
duties,  and  liabilities  which  attached  to  her  as  an  unmarried 
woman  either  became  at  the  instant  of  the  marriage  his  duties, 
rights,  and  liabilities,  or  by  the  marriage  were  extinguished,  or 
were  suspended  until  the  marriage  was  dissolved.  He  assumed 
all  responsibilities  for  her  ante-nuptial  debts,  as  well  as  for  her 
future  torts  and  frauds.  Her  independent  contractinq  poiver 
was  lost,  and  she  could  make  no  agreements  with  her  husband, 
nor  with  other  persons  except  through  him  and  with  his  con- 
sent. She  could  neither  sue  nor  be  surd  apart  from  him.  Her 
property  vested  in  him,  either  absolutely  like  choses  in  posses- 
sion, or  at  his  option  like  choses  in  action,  or  during  coverture 
like  her  estates  in  fee.  or  during  his  own  life  like  his  estate  by 
curtesy.  With  .social  changes  numerous  modifications  of  the.se 
doctrines   have  been   introduced   into   our   modern   law. 

Rem.  The  modern  law  concerning  the  submergence  of  the 
personality  of  the  wife  in  that  of  th(>  hnsb:iiid  is  incajiabjc  of  any 
definite  general  expression,  but  must  be  sought  in  a  complex  and 


202  ELEMENTARY  LAW  §  175 

fluctuating  body  of  local  statutes  and  decisions.  Courts  of  equity 
have  recognized  her  right  to  the  exclusive  control  over  prop- 
erty given  to  her  for  her  separate  use,  her  power  to  make  agree- 
ments concerning  it  as  if  she  were  unmarried,  and  to  enter  into 
beneficial  contracts  with  her  husband.  Local  statutes  have 
emancipated  him  from  liability  for  her  ante-nuptial  debts,  and 
for  her  torts  committed  during  coverture;  have  made  him  the 
trustee  rather  than  the  owner  of  her  personal  estate ;  have  given 
to  her  a  qualified  contracting  power ;  and  have  liberated  her  to  a 
great  extent  from  his  physical  control.  The  degree  to  which,  in 
any  given  State,  this  modification  of  the  ancient  law  has  pro- 
ceeded can  be  ascertained  only  by  consulting  its  current  statutes 
and  reports. 

Read:  1  Bl.  Com.,  pp.  442-444; 

2  Kent  Com.,  Lect.  xxviii,  pp.  129,  143-146,  149-181; 

Rob.  Am.  Jur.,  §§  41-43; 

Barbour,  Rights  of  Persons  and  Property,  pp.  145-148,  166-178, 

180-187; 
Dwight,  Law  of  Persons  and  Property,  pp.  198-224,  229-232; 
Andrews,  American  Law,  §§  499-506; 
Clark,  Elementary  Law,  §§  153-155; 

Schouler,  Domestic  Relations,  §§  35,  36,  52-64,  79-82  a,  87,  88-226; 
Tiffany,  Domestic  Relations,  §§  35-43,  48-69,  74-92; 
Long,  Domestic  Relations,  §§  58,  66,  69-103,  112,  113,  126-128; 
1  Parsons,  Contracts,  pp.  340-347,  365-382. 


§  175.     Of  the  Rights  of  the  Husband  as  against  the  Wife. 

The  rights  of  the  husband  as  against  the  wife  are  two :  Obe- 
dience and  Service.  The  husband  has  a  legal  right  to  the 
obedience  of  his  wife  because  he  is  the  family  head,  and  because 
the  peace  and  prosperity  of  every  social  organism  depend  upon 
the  permanent  recognition  of  some  controlling  authority.  The 
ancient  law  upheld  the  husband  in  the  exercise  of  this  authority ; 
what  vestiges  of  it  remain  under  our  modern  law  it  is  not  easy 
to  determine.  A  husband  also  has  a  legal  right  to  the  service 
of  his  wife  in  the  household,  according  to  the  customs  prevailing 
among  families  in  the  same  station  in  life;  and  also  in  such 
other  spheres  of  labor  as  she  consents  to  enter.  Her  wages 
earned  while  working  for  outside  parties  belong  to  him  per- 
sonally, or  as  trustee  for  her  and  their  children.  But  he  cannot 
oblige  her  to  seek  employment  beyond  the  limits  of  his  own 
household,  nor  require  her  to  render  services  within  it  to  per- 
sons who  are  not  members  of  their  common  family. 


§  176  HUSBAND   AND   WIFE  203 

Rem.  The  value  of  these  rights  of  the  husband  against  the 
wife,  if  measured  by  his  ability  to  legally  enforce  them,  is  at  the 
present  time  almost  infinitesimal.  Any  attempt  at  direct  physi- 
cal coercion  on  his  part  is  generally  treated  as  a  crime,  and  the 
courts  afford  him  no  relief  except  by  a  divorce.  He  may  indeed 
put  moderate  restraints  upon  her  liberty  of  action  by  withholding 
means  for  its  enjoyment,  and  if  she  elopes  without  cause  he  may, 
in  extreme  cases,  obtain  possession  of  her  person  by  a  writ  of 
habeas  corpus  if,  in  the  judgment  of  the  court,  it  is  expedient  for 
both  parties  that  she  should  return ;  but  even  then  he  cannot 
confine  her  to  prevent  her  future  escape,  nor  can  he  in  any  case 
employ  unreasonable  force  against  her  to  keep  her  from  commit- 
ting crimes  or  civil  wrongs. 

Read:  1  Bl.  Com.,  pp.  144,  145; 
2  Kent  Com.,  Lect.  xxviii,  p.  181; 

Barbour,  Rights  of  Persons  and  Property,  pp.  148-153; 
Dwight,  Law  of  Persons  and  Property,  pp.  190-198,  225,  226,  229; 
Walker,  American  Law,  §  104; 
Clark,  Elementary  Law,  §  153; 
Schouler,  Domestic  Relations,  §§  37-42,  46-50,  172; 
Tiffany,  Domestic  Relations,  §§  31-34,  48,  56; 
Long,  Domestic  Relations,  §§  59-63,  65-68. 


§  176.     Of  the  Rights  of  the  Wife  as  against  the  Husband. 

The  rights  of  the  wife  as  against  the  husband  are  also  two; 
Protection  and  Support.  It  is  the  legal  duty  of  the  husband 
to  protect  the  wife  from  personal  injuries  at  the  hands  of  third 
parties,  and  in  so  doing  he  may  use  the  same  degree  of  violence 
as  if  the  injury  were  attempted  against  himself.  This  duty  the 
law  recognizes  and  asserts,  but  is  unable  to  enforce.  It  is  the 
duty  of  the  husband  to  support  the  wife  by  providing  her  with 
necessaries  such  as  food,  clothing,  shelter,  and  medical  attend- 
ance, according  to  their  station  in  Hfe;  and  if  he  fails  to  do 
this  of  his  own  volition  she  may  procure  them  on  his  credit  if 
she  can,  and  he  will  be  obliged  to  pay  for  them.  If  he  abandons 
her,  or  drives  her  from  the  household,  he  leaves  or  sends  his 
credit  with  her,  and  she  may  still  contract  debts  for  her  neces- 
saries in  his  name.  A  husband  cannot  withdraw  his  credit 
from  his  wife  by  notifying  the  public  not  to  deal  with  her  on  his 
account,  unless  her  own  misconduct  has  forfeited  her  right 
to  be  supported  by  him,  or  he  has  already  furnished  her  with 
adequate  supplies.     But  her  ritjht  i9  lost  if  she  elopes  with  an 


204  ELEMENTARY   LAW  §  177 

adulterer,  and  is  suspended  if,  without  just  cause,  she  abandons 
her  husband  and  does  not  repent  and  offer  to  return. 

Rem..  Necessaries,  which  it  is  the  duty  of  a  husband  to  pro- 
vide for  his  wife,  may  embrace  many  other  species  of  articles  be- 
sides those  above  enumerated.  Whatever  local  customs  or  the 
emergencies  of  the  particular  case  render  it  necessary  for  the 
wife  to  have,  in  view  of  her  family  duties  and  her  station  in  life, 
fall  under  the  same  rule,  such  as  pew-rent  if  she  is  a  church-goer, 
or  legal  expenses  incurred  by  her  in  defending  herself  against  her 
husband.  A  husband  is  not  bound  to  support  the  wife  outside  the 
household  if  he  provides  for  her  and  treats  her  properly  within  it; 
nor  when  they  are  living  apart  under  a  mutual  agreement  which 
makes  her  a  reasonable  allowance ;  and  in  all  cases  persons  who 
supply  her  on  his  credit  without  his  consent  do  it  at  their  peril, 
and  cannot  charge  him  if  it  afterwards  appears  that  he  had  al- 
ready sufficiently  provided  for  her  needs. 

Read:  1  Bl.  Com.,  pp.  442,  443,  notes; 
2  Kent  Com.,  Lect.  xxviii,  pp.  14&-149; 
Barbour,  Rights  of  Persons  and  Property,  pp.  153-166; 
Walker,  American  Law,  §  105; 
Clark,  Elementary  Law,  §  153; 
Schouler,  Domestic  Relations,  §§  45,  51,  65-78; 
Tiffany,  Domestic  Relations,  §§  70-73; 
Long,  Domestic  Relations,  §§  64,  99,  114-125; 
1  Parsons,  Contracts,  pp.  347-364. 


§  177.     Of  the  Rights  of  the  Husband  and  Wife  to  One  Another 
as  against  Third  Parties. 

As  against  third  parties  the  husband  has  a  right  to  the  per- 
sonal security  and  liberty  of  the  wife,  to  her  conjugal  society, 
and  to  her  services.  Any  attack  upon  her  person  or  her  freedom 
is  a  direct  injury  to  him,  distinct  from  and  additional  to  the 
injury  inflicted  upon  her.  Her  conjugal  society  consists  in  the 
affectionate  companionship  of  a  chaste  and  loyal  wife,  and  to 
this  the  husband  is  entitled  as  against  any  person  who  would 
alienate  from  him  her  affection,  remove  her  from  his  household, 
or  seduce  her  into  an  adulterous  connection.  Her  services 
include  the  willingness  and  ability  to  render  them;  and  any 
interference  of  third  parties  which  dissuades  her  from  the  per- 
formance of  her  duty,  or  impairs  her  capability  to  discharge 
it,  is  an  infringement  of  his  rights.  The  rights  of  a  wife  in  her 
husband  as  against  third  parties  are  not  as  yet  so  well  defined 


§  178  PARENT  AND   CHILD  205 

and  clearly  recognized.  Her  natural  rights  in  his  life,  health, 
and  freedom,  in  his  conjugal  companionship,  and  in  his  marital 
support  are  not  inferior  to  his  in  her ;  and  gradually  the  law  is 
giving  to  these  rights  its  sanction  by  statutes  or  decisions  which 
afford  her  remedies  for  their  violation. 

Rem.  At  the  time  when  the  household  was  recognized  as  the 
social  unit,  and  tiie  husband  as  its  head  was  clothed  with  power 
to  compel  the  obedience  of  all  its  members  and  to  j)rotect  them 
against  all  external  interfcTence,  it  was  logically  inevitable  that 
all  legal  rights  and  remedies  against  third  parties  should  reside 
in  him  alone,  as  the  family  superior;  while  the  natural  rights  of 
the  inferior  members  of  the  family  in  him  against  third  parties 
should  be  legally  ignored,  and  wrongs  against  them  be  left  to 
such  redress  as  the  natural  lex  talionis  might  suggest.  With  the 
disappearance  of  this  theory  of  the  household  and  its  headship 
these  natural  rights  emerge  and  demand  legal  recognition,  "^rhe 
reluctance  of  some  courts  to  assert  them,  on  the  ground  that  legal 
precedents  are  wanting,  evidences  a  failure  to  ajjpreciate  the  in- 
exorable consequences  of  social  evolution,  and  the  danger  of  still 
leaving  these  rights  to  be  vindicated  by  the  methods  of  the  natural 
law. 

Read:  4  Bl.  Com.,  pp.  313-317; 

Barbour,  Riglits  of  Persons  anil  Property,  pp.  178-180; 

Clark,  Eloineiitary  Law,  §  153; 

Schouler,  Domestic  Relations,  §§  43,  8.3-86; 

Tiffany,  Domestic  Relations,  jj§  44-47; 

Long,  Domestic  Relations,  §§  104-109. 


SECTION    II 

OF    THE    RIGHTS    ARISING    OUT    OF    THE    RELATION    OF     PARENT 
AND    CHILD 

§  178.     Of  Children:  Legitimate,  lUe^timate,  and  Adopted. 

Three  classes  of  children  are  known  to  the  law:  (1)  Legiti- 
mate Children;  (2)  Illegitimate  Children;  and  (3)  Adopted 
Children.  A  child  is  legitimate  when  it  is  born  during,  or  within 
the  usual  period  of  gestation  after,  the  coverture  of  its  mother 
and  is  not  proved  to  have  been  the  offspring  of  an  adulterous 
intercourse.  Whether  a  child  thus  born  was  conceived  before 
or  during  coverture  does  not  affect  its  legitimacy.  A  child  is 
illegitimate  when  it  is  not  born  during,  or  within  a  competent 


206  ELEMENTARY   LAW  §  178 

time  after,  the  coverture  of  its  mother,  or  is  proved  to  have  re- 
sulted from  an  adulterous  intercourse.  Every  child  which  is 
born  during  coverture,  or  within  about  ten  months  after  the 
coverture,  is  therefore  presumed  to  be  legitimate,  and  neither 
he  nor  his  mother  nor  her  heirs  are  permitted  to  assert  the  con- 
trary; but  the  husband  of  the  mother  and  his  heirs  may  deny 
the  paternity  and  show,  if  they  are  able,  that  the  child  is  illegiti- 
mate. An  adopted  child  is  one  between  whom  and  the  adopting 
parent  the  filial  relation  is  established,  not  by  processes  of 
nature,  but  by  process  of  law.  Between  parents  and  legitimate 
children  a  complete  and  perfect  filial  relation  exists.  Between 
parents  and  illegitimate  children  the  relation  is  always  im- 
perfect: sometimes  to  the  denial  of  all  ties  between  it  and  its 
father  except  such  as  are  necessary  to  relieve  the  public  from 
the  burden  of  its  physical  support.  Between  adopted  children 
and  their  adopting  parents  the  relation  is  more  or  less  complete, 
according  to  the  undertaking  of  the  parent  and  the  provisions 
of  the  local  law. 

Rem.  An  illegitimate  child  is  said  to  be  mdlins  flius,  or  the 
son  of  nobody ;  and  this  is  true  as  to  all  property  rights  whose  ex- 
istence depends  upon  his  legal  relationship  to  his  father.  Hence 
he  has  no  inheritable  blood  in  the  paternal  line,  and  no  family 
name  until  by  reputation  he  acquires  one  of  his  own.  He  is, 
however,  the  son  of  his  mother,  and  under  the  laws  of  some  States 
may  inherit  her  property.  If  his  father  and  mother  marry  after 
his  birth,  and  the  father  then  acknowledges  him  as  his  child,  he 
thereby  becomes  legitimate,  and  thenceforth  has  the  same  rights 
as  if  he  had  been  born  in  wedlock.  An  illegitimate  child  has  no 
rights  against  its  parents,  except  that  of  support.  This  right  is 
primarily  assertible  only  against  the  mother;  but  by  statute  the 
obligation  is  generally  extended  to  the  putative  father,  and  may 
be  enforced  against  him  either  by  the  mother  or  by  the  town  or 
parish  on  which  the  maintenance  of  the  child  would  otherwise 
devolve.  The  right  to  the  custody  and  control  of  an  illegitimate 
child  is  also  in  the  mother,  though  courts  of  equity  may  for  suffi- 
cient cause  transfer  it  to  the  father  or  to  some  third  person. 
Adopted  children,  though  legally  the  children  of  the  adopting 
parent  and  capable  of  inheriting  his  estate,  do  not  derive  from 
him  any  inheritable  blood  so  as  to  inherit  through  him  from  his 
ancestors  or  from  his  collateral  relations.  Nor,  on  the  other  hand, 
do  they  lose  the  inheritable  blood  which  they  received  from  their 
natural  parents,  so  as  to  be  debarred  from  taking  by  descent 


§  179  PARENT  AND   CHILD  207 

from  them  or  through  them  from  their  ancestors  and  relatives. 
Adoption  statutes  are  liberally  construed  in  favor  of  the  adopted 
children  ;  and  to  the  extent  to  which  their  relation  to  their  adopt- 
ing parent  resembles  that  of  natural  children  and  their  parents, 
do  their  rights  and  obligations  also  correspond. 

Read:  1  Bl.  Com.,  pp.  446,  454-459; 
2  Kent  Com.,  Lect.  xxix,  pp.  208-217; 

Barbour,  Riglits  of  Persons  and  Property,  pp.  187,  188,  200-212; 
Dwight,  Law  of  Persons  and  Property,  pp.  254,  255,  256-267; 
Walker,  American  Law,  §  108; 
Andrews,  American  Law,  §§  507,  508; 
Clark,  Elementary  Law,  §§  159,  161; 
Wharton,  Conflict  of  Laws,  §§  240-251,  257-257  a; 
Schouler,  Domestic  Relations,  §§  235-243,  289-296; 
Tiffany,  Domestic  Relations,  §§  110-113; 
Long,  Domestic  Relations,  §§  147-151,  168; 

1  Parsons,  Contracts,  pp.  337,  338; 

2  Greenleaf,  Evidence,  §§  150-153. 


§  179.     Of  the  Rights  of   Parents   as   against   their  Legitimate 
Children.     , 

The  rights  of  parents  as  against  their  legitimate  children 
vest  primarily  in  the  father,  and  are  three :  Custody,  Obedience, 
and  Services.  The  father  has  a  right  to  the  custody  of  his 
legitimate  minor  child  unless,  for  the  welfare  of  the  child,  it 
has  been  committed  to  some  other  person  by  the  courts.  He  is 
also  entitled  to  its  obedience  and  may  compel  it,  by  a  reasonable 
exercise  of  force,  to  submit  to  his  commands;  but  he  has  no 
right  to  abuse  it  or  inflict  upon  it  any  permanent  injury.  He 
also  owns  the  services  of  the  child  and  all  the  results  thereof,  and 
these  are  assets  which  his  creditors  may  take  in  satisfaction  of 
his  debts.  A  father  can  emancipate  his  child  by  relinquishing 
to  it  his  right  to  its  services,  which  then  become  the  property 
of  the  child  even  against  the  father's  creditors. 

Rem.  Unless  by  virtue  of  the  decree  of  a  competent  court  the 
mother  has  no  right  to  the  custody,  obedience,  and  services  of  a 
legitimate  child  during  the  lifetime  of  the  father.  After  his  death, 
however,  the  parental  right  and  authority  naturally  and  legallv 
devolve  upon  her,  subject  to  judicial  intervention  for  the  wel- 
fare of  the  child.  Persons  standing  ///  loco  parentis  to  the  child, 
such  as  schoolmasters,  guardians  of  the  person  and  the  like,  have 
a  right  to  its  custody  and  obedience,  but  not  to  its  services. 


208 


ELEMENTARY   LAW 


ISO 


Read:  1  Bl.  Com.,  pp.  452-454; 

2  Kent  Com.,  Lect.  xxix,  pp.  203-208; 

Barbour,  Rights  of  Persons  and  Property,  pp.  192-200; 

Dwight,  Law  of  Persons  and  Property,  pp.  239-249,  255,  256; 

Walker,  American  Law,  §  110; 

Andrews,  American  Law,  §  510; 

Clark,  Elementary  Law,  §  163 ; 

Wharton,  Conflict  of  Laws,  §§  253-256; 

Schouler,  Domestic  Relations,  §§  250,  255-269; 

Tiffany,  Domestic  Relations,  §§  122-130; 

Long,  Domestic  Relations,  §§  160-163,  165-167; 

1  Parsons  on  Contracts,  pp.  309-311. 


§  180.     Of  the  Rights  of  Legitimate  Children  as  against  their 
Parents. 

The  rights  of  legitimate  children  as  against  their  parents  are 
two:  Protection  and  Support.  It  is  the  duty  of  a  father  to 
protect  the  persons  of  his  legitimate  minor  children  while  under 
his  control,  and  if  he  neglects  it  he  may  be  criminally  liable.  In 
their  defence  he  may  lawfully  do  anything  that  he  might  do  in 
defence  of  himself.  He  is  also  obliged  to  support  them  and 
provide  them  with  necessaries  according  to  his  station  in  hfe, 
including  a  suitable  education ;  and  if  he  fails  to  do  this  Avhile 
they  are  living  in  his  household,  or  if  he  drives  them  from  it  by 
his  cruelty,  any  third  person  may  supply  them  and  charge  the 
father  with  their  cost.  In  this  case,  however,  the  third  person 
acts  at  his  peril  and  has  no  redress  against  the  father  if  he  had 
made  other  adequate  provision  for  the  child.  Upon  the  death 
of  the  father  his  duties  to  the  children  rest  upon  their  mother 
in  a  degree  proportioned  to  her  power  to  fulfil  them. 

Rem.  An  emancipated  child,  living  apart  from  its  father,  is 
responsible  for  its  own  support,  and  persons  furnishing  it  with 
necessaries  are  presumed  to  look  to  it  for  payment ;  but  this  does 
not  entirely  release  the  father  from  his  obligation  in  case  the 
child  should  be  unable  to  discharge  the  debt.  The  husband  of 
a  mother,  who  has  living  minor  children  by  a  former  marriage, 
owes  to  the  step-children  no  duty  of  support  unless  he  formally 
adopts  them;  but  if  he  takes  them  into  his  household,  and 
treats  them  as  his  own,  he  may  become  liable  for  necessaries 
supplied  to  them  by  third  persons  under  the  belief  that  they  are 
his  offspring. 

Read:  1  Bl.  Com.,  pp.  446-452; 

2  Kent  Com.,  Lect  xxix,  pp.  189-203; 


§  181  PARENT  AND   CHILD  209 

Barbour,  Rights  of  Persons  and  Property,  pp.  188-192; 
Dwight,  Law  of  Persons  and  Property,  pp.  233-239; 
Walker,  American  Law,  §  109; 
Andrews,  American  Law,  §  509; 
Schouler,  Domestic  Relations,  §§  244-254; 
Tiffany,  Domestic  Relations,  §§  114-121; 
Long,  Domestic  Relations,  §§  152-158,  169; 
1  Parsons  on  Contracts,  pp.  299-309. 

§  181.     Of  the  Rights  of  Parents  and  their  Legitimate  Children  as 
against  Third  Parties. 

The  rights  of  a  father,  as  such,  against  third  persons  grow  out 
of  his  right  to  the  custody,  obedience,  and  services  of  the  child. 
Thus  he  has  a  right  to  the  personal  security  and  liberty  of  the 
child,  and  so  far  as  their  invasion  impairs  his  control  over  it 
or  the  amount  or  value  of  its  services  to  him,  or  increases  the 
burdens  involved  in  its  support,  he  sustains  an  injury  for  which 
the  law  affords  a  remedy.  He  also  has  a  right  to  the  voluntary 
residence  of  the  child  within  the  precincts  of  the  household, 
and  its  removal  therefrom  by  force  or  fraud  or  enticement  is 
an  infringement  of  his  rights.  Where  the  child  renders  service 
to  third  persons,  unless  it  has  been  emancipated  by  its  father, 
the  wages  earned  by  it  belong  to  the  father,  and  may  be  collected 
by  him  from  the  employer.  A  father  is  not  liable  to  third  per- 
sons for  the  torts  of  the  child  unless  they  were  committed  under 
his  direction,  or  with  his  encouragement  and  sanction.  Nor 
is  he  responsible  for  the  contracts  of  the  child  except  for  neces- 
saries which  he  has  himself  failed  to  supply,  or  when  the  child 
has  acted  as  an  agent  under  his  express  or  implied  authority. 
The  rights  of  a  child,  as  such,  against  third  persons  are  founded, 
like  those  of  the  parent,  on  the  law  of  nature  and  pertain  to  the 
freedom  of  the  parent  from  such  wrongful  interference  as 
diminishes  his  power  to  ])rotect  and  support  the  child.  These 
rights  are  beginning  to  obtain  legal  recognition,  but  are  not  as 
yet  completely  defined  and  ade(|uately  enforced. 

Rem.  Injuries  inflicted  on  a  father,  depriving  his  children  of 
his  protection  and  support,  wt^e  avenged  under  the  law  of  nature 
and  in  primitive  society  in  the  same  manner,  and  for  the  same 
reason,  as  those  wiiieh  dt^prived  a  wife  of  the  society  of  iier  hus- 
band. The  assertion  of  the  right  to  such  redress  by  our  modern 
legislation  has  been  occasioned  by  various  influences,  more  or 

14 


210  ELEMENTARY   LAW  §  182 

less  identified  with  attempted  social  reforms,  and  not  directly 
intended  for  the  benefit  of  the  wife  or  child. 

Read:  3  Bl.  Com.,  pp.  139,  140,  142,  143; 
Clark,  Elementary  Law,  §  162 ; 
Schouler,  Domestic  Relations,  §§  270-277; 
Tiffany,  Domestic  Relations,  §§  131-158; 
Long,  Domestic  Relations,  §§  159,  164; 
Ante,  §  177,  Rem.  and  notes. 


§  182.     Of   the   Reciprocal   Rights   of   Parents  and  their  Adult 

Legitimate  Children. 

The  reciprocal  rights  of  parents  and  legitimate  children  cease, 
for  the  most  part,  when  the  children  reach  their  majority. 
But  when  adult  children  become  paupers  and  are  chargeable 
to  the  pubhc,  the  legal  provisions  made  to  secure  proper  pro- 
tection for  the  poor  and  helpless  usually  cast  upon  their  parents 
a  portion  of  the  burden  of  maintaining  them.  And  similarly, 
when  parents  become  destitute  their  adult  children,  who  have 
means,  may  be  compelled  to  contribute  to  their  support.  Cer- 
tain States  extend  this  obligation  to  more  remote  relations, 
especially  in  the  ascending  and  descending  lines.  Moreover, 
when  adult  children  remain  in  the  household  of  their  parents 
many  of  the  rights  and  duties  which  attach  to  the  filial  relation 
are  presumed  to  continue,  —  such,  for  example,  as  gratuitous 
support  on  one  side  and  gratuitous  service  on  the  other,  — 
unless  by  some  agreement  between  them  a  contrary  intent  is 
shown.  Even  when  such  an  agreement  has  been  made  the 
children  will  still  stand  toward  the  parents  in  some  form  of  the 
relation  between  dependants  and  their  family  head. 

Rem.  A  minor  child  attains  its  majority  when  it  reaches  the 
age  of  twenty-one  years,  —  that  is,  when  twenty-one  complete 
years  have  elapsed  since  the  moment  of  its  birth.  As  the  law 
takes  no  notice  of  the  fractions  of  a  day,  except  for  the  purpose 
of  determining  the  priority  of  two  compared  events,  any  event 
occurring  on  a  given  day  is  presumed  to  have  taken  place  in  each 
and  every  moment  of  the  entire  day.  Thus  the  birth  of  a  child  is 
imputed  to  the  first  and  all  other  moments  of  the  day  on  which 
it  was  born  and  the  expiration  of  its  twenty-first  year  to  the  first 
and  every  moment  of  the  day  which  precedes  its  twenty-first 
birthday,  —  that  birthday  being  really  the  first  day  of  its  twenty- 
second  year,    A  child,  therefore,  attains  its  majority  on  the  first 


§  183  GUARDIAN   AND   WARD  211 

moment  of  the  day  before  its  twenty-first  birthday.  This  exam- 
ple illustrates  the  legal  method  of  reckoning  intervals  of  time  be- 
tween events,  or  from  one  event  to  another. 

Read:  1  Bl.  Com.,  p.  448,  notes; 

Bishop,  Written  Laws,  §§  104  6-110  c; 

Walker,  American  Law,  §  22; 

Clark,  Elementary  Law,  §  163; 

Schouler,  Domestic  Relations,  §§  278-288; 

Tiffany,  Domestic  Relations,  §  143; 

Long,  Domestic  Relations,  §  162; 

1  Parsons,  Contracts,  pp.  311,  312. 


SECTION    III 

OF    THE    RIGHTS   ARISING   OUT   OF  THE   RELATION  OF  GUARDIAN 

AND  WARD  ^      '' 

§  183.     Of  the  Species  of  Guardians. 

The  relation  of  guardian  and  ward  is  of  legal  ^origin,  and  is 
intended  partly  to  sujiplement  and  partly  to  supply  the  place 
of  that  of  parent  and  child.  Guardians  as  to  their  functions  are 
of  two  species:  Guardians  of  the  Person;  and  Guardians  of 
the  Estate.  A  guardian  of  the  person  is  the  instrument  through 
whom  the  State  endeavors  to  preserve  the  personal  rights  of 
minor  children  whose  parents  are  dead  or  are  unable  to  afford 
them  adequate  protection.  A  guardian  of  the  estate  is  the  in- 
strument through  whorri  the  State  endeavors  to  preserve  the 
property  rights  of  all  children  during  the  period  of  their  minority. 
The  same  individual  may  be  the  guardian  of  both  the  person 
and  estate  of  the  minor  child,  but  his  rights  and  duties  in  each 
capacity  still  remain  entirely  distinct  from  one  another.  Guar- 
dians, as  to  their  mode  of  creation,  are  of  three  species:  (1) 
Guardians  by  Nature;  (2)  Testamentary  Guardians;  and 
(3)  Guardians  by  Appointment.  A  guardian  by  nature  is  the 
father  of  the  child,  or  in  the  event  of  his  death  the  mother,  and 
has  the  legal  as  well  as  the  natural  care  and  custody  of  the 
person  of  the  child  during  its  infancy,  but  has  no  control  over  its 
estate  unless  also  made  a  testamentary  guardian  or  a  guardian 
by  appointment.  A  testamentary  guardian  is  one  designated  by 
the  deed  or  last  will  of  a  jiarent  to  take  charge  of  the  person  or 
estate  of  his  minor  child,  or  both,  until  it  arrives  at  its  majority. 


212  ELEMENTARY   LAW  §  183 

A  guardian  by  appointmeiit  is  one  appointed  by  a  competent 
court  to  control  the  person  or  manage  the  estate  of  a  minor 
child.  Power  to  appoint  such  guardians  resides  in  courts  of 
equity,  and  in  probate  courts  and  other  courts  exercising  equity 
powers.  A  guardian  of  any  species  may  be  remofved  by  the 
proper  court  for  any  sufficient  cause,  and  another  be  appointed 
in  his  stead.  A  testamentary  guardian  or  a  guardian  by  ap- 
pointment may,  by  permission  of  the  court,  resign  unless  the 
interests  of  the  ward  require  his  continuance  in  office.  A  guard- 
ianship expires  upon  the  death  of  the  ward,  or  upon  the  mar- 
riage of  a  female  ward  to  an  adult  husband.  The  marriage  of 
a  male  ward,  or  of  a  female  ward  to  an  infant  husband,  extin- 
guishes the  guardianship  of  their  persons  but  not  that  of  their 
estates. 

Rem.  Many  species  of  guardianship  existed  under  our  ancient 
law  of  which  only  the  three,  above  enumerated,  now  survive. 
Testamentary  guardianship  originated  in  the  Statute  12  Charles 
II.  ch.  24  (a.  d.  1661),  and  is  recognized  in  most  of  our  American 
States.  This  guardianship  supersedes  all  others  as  to  the  person 
of  the  child,  and  as  to  whatever  estate  the  child  may  have  de- 
rived from  the  testator.  It  is  fiduciary  in  its  character,  and  hence 
cannot  be  delegated  by  the  guardian  to  any  other  person ;  and 
should  the  guardian  die  or  be  removed  during  the  child's  min- 
ority, and  the  will  make  no  provision  for  his  successor,  another 
guardian  must  be  appointed  by  the  court,  who  will  not  be  a  tes- 
tamentary guardian  though  his  duties  will  be  regulated  by  the 
will.  Guardians  by  appointment  may  be  designated  by  the  proper 
court  either  on  its  own  motion,  or  on  the  application  of  the  child 
itself,  or  at  the  request  of  any  person  interested  in  the  child. 
Children  above  the  age  of  fourteen,  and  in  some  States  female 
infants  over  twelve,  may  nominate  their  own  guardian,  and  if  the 
persons  nominated  are  suitable  the  court  must  approve  them. 
In  the  absence  of  such  nomination  the  court  may  select  any  per- 
son, not  disqualified  by  want  of  capacity  or  integrity,  though  the 
next  of  kin  to  the  child  usually  receives  a  preference.  On  accept- 
ing his  appointment  the  guardian  must  qualify  by  taking  the 
customary  official  oath,  and  giving  bonds  for  the  faithful  per- 
formance of  his  duties. 

Read:  1  Bl.  Com.,  pp.  460-463; 

2  Kent  Com.,  Lect.  xxx,  pp.  220-227; 
Barbour,  Rights  of  Persons  and  Property,  pp.  212-237; 
Dwight,  Law  of  Persons  and  Property,  pp.  268-276; 
Walker,  American  Law,  §§  111,  112; 


§§  184,  185  GUARDIAN   AND   WARD  213 

Andrews,  American  Law,  §  516; 

Clark,  Elementary  Law,  §§  164,  165,  167; 

Wharton,  Conflict  of  Laws,  §§  259,  260; 

Schouler,  Domestic  Relations,  §§  297-346,  381-405; 

Tiffany,  Domestic  Relations,  §§  145-152,  155-158,  146-190; 

Long,  Domestic  Relations,  §§  170-176,  178. 

§  184.     Of  the  Reciprocal  Rights  of  Guardians  of  the  Person  and 
their  Wards. 

The  reciprocal  rights  of  guardians  of  the  •person  and  their 
wards  resemble,  but  are  not  identical  with,  the  rights  of  parents 
and  their  children.  The  guardian  has  a  right  to  the  obedience 
of  the  ward  and  owes  it  the  duty  of  'protection;  but  he  is  not 
entitled  to  its  services,  nor  is  he  responsible  for  its  support 
unless  he  is  also  the  guardian  of  its  estate.  He  may  fix  the  resi- 
dence of  the  ward  in  any  suitable  location  within  the  jurisdiction 
of  the  court  by  which  he  was  appointed,  and  in  matters  necessary 
to  the  welfare  of  the  ward  he  may  exercise  over  it  the  same 
physical  control  as  if  he  were  its  father.  But  he  cannot  compel 
a  ward  to  labor  as  a  father  might,  except  for  its  own  support 
and  where  it  has  no  property  tlie  income  of  which  would  be 
sufficient  to  maintain  it. 

Rem.  Although  a  guardian  of  the  person  alone  is  not  always 
required  to  give  a  bond  for  the  faithful  performance  of  his  duty, 
yet  he  is  always  subject  to  the  supervision  of  the  court  having 
jurisdiction  over  the  ward  and  may  be  compelled  to  treat  the  ward 
in  a  proper  manner ;  or  where  the  welfare  and  comfort  of  the  ward 
requires  it  he  may  be  removed  and  another  ajipointcd  in  his  place. 
He  is  entitled  to  reasonable  compensation  for  his  actual  services 
if  the  ward  has  any  estate  out  of  which  it  can  be  derived ;  but  he 
is  not  allowed  to  take  any  advantage  of  his  position  in  dealing 
with  the  ward,  either  as  to  its  personal  or  property  rights. 

Read:  Clark,  Elementary  Law,  §  166; 
Wharton,  Conflict  of  Laws,  §§  261-264; 
TifTany,  Domestic  Relations,  §§  159-165; 
Long,  Domestic  Relations,  §§  179,  180; 
Schouler,  Domestic  Relations,  §§  347-358. 

§  185.     Of  the  Reciprocal  Rights  of  Guardians  of  the  Estate  and 
their  Wards. 

The  guardian  of  (lie  estate  of  a  minor  child  has  no  rights  over 
the  person  of  his  ward ;  and  owes  it  no  other  duty  than  to  manage 
its  property  with  reasonable  care,  to  apply  the  income  to  ita 


214  ELEMENTARY   LAW  §  185 

support  as  far  as  necessary,  and  to  surrender  to  it  the  balance 
of  the  estate  when  the  guardianship  expires.  Upon  his  appoint- 
ment it  is  his  first  duty  to  collect  and  inventory  all  the  property 
belonging  to  the  ward,  and  prudently  invest  it.  He  has  a  right 
to  sell  the  'personal  property  and  to  lease  the  realty,  but  cannot 
sell  the  realty  unless  the  will  or  the  court  which  appointed  him 
empowers  him  so  to  do.  If  he  suffers  any  damage  or  waste  to 
befall  the  property  through  his  neglect,  or  mingles  the  ward's 
money  with  his  own,  or  lets  it  lie  idle  without  cause,  he  must 
make  good  the  loss.  In  applying  the  property  to  the  support 
of  the  ward  he  must  not  invade  the  principal  without  express 
authority  from  the  will  or  the  court,  but  rather  put  the  ward  to 
work  to  make  up  the  deficiency.  At  the  close  of  his  guardian- 
ship he  must  render  the  account  required  by  law  and  restore 
the  residue  of  the  property  to  the  ward  or  to  its  legal  represen- 
tatives. For  any  default  in  these  duties  he  and  his  bondsmen 
are  responsible. 

Rem.  While  the  management  of  his  ward's  estate  is  left  largely 
to  the  sound  discretion  of  the  guardian,  yet  the  law  strictly  forbids 
the  guardian  to  use  it  for  his  own  advantage.  He  is  not  allowed 
to  deal  personally  with  himself  as  guardian,  as  by  buying  property 
from  or  selling  it  to  the  ward's  estate ;  and  if  he  makes  a  profitable 
speculation  with  the  ward's  money,  or  settles  a  claim  against  the 
ward  on  favorable  terms,  the  benefit  accrues  wholly  to  the  ward. 
Over  the  final  adjustment  of  guardianship  affairs  the  law 
watches  with  great  jealousy,  and  no  release  of  the  guardian  by 
his  former  ward  is  binding  on  the  ward,  unless  given  after  a  full 
opportunity  to  become  acquainted  with  the  past  management  and 
present  condition  of  the  estate,  and  the  utmost  openness  and 
good  faith  on  the  part  of  the  guardian. 

Read:  1  Bl.  Com.,  pp.  462,  463; 

2  Kent  Com.,  Lect.  xxx,  pp.  228-231; 

Barbour,  Rights  of  Persons  and  Property,  pp.  241-248; 

Dwight,  Law  of  Persons  and  Property,  pp.  277-283; 

Walker,  American  Law,  §  114; 

Andrews,  American  Law,  §  516; 

Clark,  Elementary  Law,  §  166; 

Wharton,  Conflict  of  Laws,  §§  265-270; 

Metcalf,  Contracts,  pp.  176-180; 

Schouler,  Domestic  Relations,  §§  359-380; 

Tiffany,  Domestic  Relations,  §§  167-185; 

Long,  Domestic  Relations,  §§  181-185,  187,  188. 


§§  186,  187  GUARDIAN  AND  WARD  215 

§  186.     Of  the  Rights  of  Guardians  and  Wards  as  ag^ainst  Third 
Persons. 

A  ward  has  no  rights  as  against  third  persons  in  reference 
to  his  guardian,  unless  the  guardian  is  its  parent  or  other  family 
head.  A  guardian  of  tJie  person  possesses  rights  in  the  ward's 
security  and  liberty,  commensurate  with  his  duty  to  protect 
it  and  its  subjection  to  his  physical  control.  A  guardian  of  the 
estate  is  the  current  owner  of  the  property  as  against  all  persons 
but  the  ward  and  its  legal  representatives;  and  can  maintain 
an  action  for  the  infringement  of  his  possessory  rights,  or  of 
the  ultimate  rights  of  the  ward  now  temporarily  entrusted  to 
his  charge. 

Rem.  The  legal  remedies  available  to  parents  for  injuries  to 
the  persons  of  their  children  are  open  also  to  guardians,  but  the 
compensation  obtainable  thereby  accrues  primarily  to  the  bene- 
fit of  the  ward,  unless  the  guardian  can  show  that  by  the  injury 
he  himself  sustained  some  pecuniary  loss. 

Read:  3  Bl.  Com.,  p.  141. 

§  187.     Of  Guardians  ad  Litem. 

A  guardian  ad  litem  is  a  transient  guardian  appointed  by  a 
court  before  which  an  infant,  who  has  no  other  guardian,  has 
been  made  defendant  in  a  civil  action  or  a  criminal  prosecution, 
to  protect  the  interests  of  the  infant  in  the  litigation.  Unless 
an  infant  defendant  is  represented  in  court  by  a  guardian  of 
some  kind,  no  valid  judgment  can  be  rendered  against  him. 
In  selecting  such  a  guardian  the  court  must  consult  the  welfare 
of  the  infant  alone,  and  if  possible  obtain  his  concurrence  or 
that  of  his  parents  or  other  friends.  The  special  rights  and 
duties  of  a  guardian  ad  litem  are  determined  by  the  local  law. 

Rem.  An  infant  plaintiff  who  has  no  regular  guardian,  or 
whose  guardian  is  defendant  in  the  action,  must  sue  by  prochein 
ami,  or  next  friend,  who  conducts  the  litigation  on  his  side  as  a 
guardian  n//  litem  does  on  behalf  of  an  infant  defendant.  The 
prochein  ami  may  be  his  |)arent  or  any  otiier  person  who  is  willing 
to  undertake  the  suit,  and  n)ay  be  selected  by  the  infant  himself 
or,  if  the  infant  is  incapable  of  making  a  selection,  may  intervene 
to  protect  the  infant  of  his  own  accord. 

Read:  1  BI.  Com.,  p.  464; 
3  Bl.  Com.,  p.  428; 


216  ELEMENTARY   LAW  §  188 

2  Kent  Com.,  Lect.  xxx,  p.  229; 

Rob.  Am.  Jur.,  §  31 ; 

Barbour,  Rights  of  Persons  and  Property,  pp.  237-241 ; 

Dwiglit,  Law  of  Persons  and  Property,  p.  276; 

Tiffany,  Domestic  Relations,  §  154. 

§  188.     Of  Guardians  of  Incapables. 

Adults  who,  from  want  of  intelligence  or  feebleness  of  will, 
resemble  infants  in  their  incapacity  to  protect  their  persons,  or 
manage  their  estates,  may  be  placed  under  guardianship  by 
courts  of  eqiiity,  and  subjected  to  the  same  control  as  if  they 
were  still  minors.  The  law  relating  to  these  guardianships 
is  mainly  statutory,  and  varies  in  its  details  in  our  different 
States.  In  all  cases,  however,  the  appointment  of  a  guardian 
for  an  adult  must  be  preceded  by  the  judgment  of  a  competent 
tribunal,  finding  the  proposed  ward  to  be  in  fact  incapable, 
after  a  trial  in  which  he  has  had  an  ample  opportunity  to  appear 
and  be  heard.  The  measure  of  control  over  his  property  and 
person  confided  to  the,  guardian  must  be  restricted  in  kind  and 
in  degree  to  that  which  his  condition  evidently  requires;  and 
may  thus  partially  or  completely  deprive  him  of  self-direction 
or  contracting  power.  The  guardianship  continues  only  during 
the  incapacity,  and  when  in  the  judgment  of  the  court  his 
capacity  is  restored  the  guardian  must  be  withdrawn,  and  the 
remainder  of  his  property  must  be  returned  to  him. 

Rem,.  Incapables  embrace  a  large  and  diverse  class  of  indi- 
viduals who  are  below  the  normal  standard  of  ordinary  men  and 
women.  Among  them  are  the  insane,  the  imbecile,  the  habitual 
drunkard,  the  spendthrift,  and  whosoever  else  may  be  unable  to 
cope  with  the  responsibilities  in  which  his  personal  environment 
or  his  property  interests  involve  him.  The  right  of  the  State  to 
interfere  with  such  persons,  and  place  them  under  guardianship, 
is  based  partly  on  its  duty  to  protect  all  its  subjects  who  are  not 
qualified  to  protect  themselves ;  and  partly  on  its  duty  to  guard 
the  community  at  large  against  the  mischief  which  such  persons 
may  commit,  and  the  burdens  of  public  support  which  the  waste 
of  their  own  property  may  entail.  For,  in  the  eye  of  the  law,  the 
State  is  only  the  greater  family  of  which  all  its  subjects  are  mem- 
bers, while  the  sovereign  is  the  parent  and  the  head  who  regu- 
lates the  affairs  of  his  vast  household  in  such  a  manner  as  to 
conserve  the  life,  liberty,  and  property  of  the  individual,  and  at 
the  same  time  to  promote  the  welfare  of  the  whole. 


189  MASTER   AND   SERVANT  217 

Read:  1  Bl.  Com.,  pp.  302-306; 
3  Bl.  Com.,  p.  427; 
Rob.  Am.  Jur.,  §  40; 
Walker,  American  Law,  §  113; 
Andrews,  American  Law,  §§  511,  816; 
Tiffany,  Domestic  Relations,  §  153; 
1  Parsons  on  Contracts,  pp.  387,  388. 


SECTION    IV 

OF  THE  RIGHTS  ARISING  OUT  OF  THE  RELATION  OF  MASTER  AND 

SERVANT 

§  189.     Of  Menials. 

The  domestic  relation  of  master  and  .servant  subsists  between 
employers  and  two  species  of  employees,  —  Menials  and  Appren- 
tices. A  menial  is  a  servant  who  dwells  in  the  household  of  the 
master,  and  is  employed  about  domestic  concerns,  under  a 
contract,  express  or  implied,  to  continue  in  service  for  a  certain 
time.  When  the  duration  of  tlie  service  is  not  specified  in  the 
contract  it  is  generally  fixed  by  custom,  and  each  party  is  en- 
titled to  reasonable  notice  from  the  other  of  his  intention  to 
determine  it.  The  compensation  is  usually  proportioned  to  the 
term  of  service,  as  a  gross  sum  for  the  entire  service  or  for 
aliquot  parts  thereof;  and  in  this  case  no  portion  of  the  sum  is 
earned  until  the  corresponding  period  of  service  is  complete. 
Justice,  however,  will  not  permit  the  master  to  discharge  the 
servant  without  sufficient  cause,  or  to  render  his  position  in  the 
hou.sehold  so  uncomfortable  that  he  will  be  compelled  to  leave 
it,  and  then  refuse  to  pay  him  for  the  service  which  he  has  already 
rendered;  nor  will  it  tolerate  a  total  forfeiture  of  wages  when 
the  death  or  sickness  of  the  servant  prevents  th(^  completion  of 
the  contract.  In  such  cases,  though  the  original  contract  of  the 
servant  is  broken  and  therefore  cannot  be  enforced  against  the 
master,  a  quasi  contract  based  upon  the  fact  that  the  master 
has  enjoyed  the  benefit  of  a  partial  .service,  which  was  not  in- 
tended nor  expected  to  be  gratuitous,  takes  its  place  and  on 
this  the  servant  can  recover  what  his  services  were  reasonably 
worth.  But  a  servant  who  abandons  his  employment  without 
cause,  or  is  dismissed  by  the  master  for  serious  misconduct, 
cannot   recover  any   portion   of  the  gro.ss  sum   which    was   to 


218  ELEMENTARY   LAW  §  190 

become  due  only  when  the  entire  service  was  performed.  This 
rule  is  modified  in  some  States  by  the  doctrine  that  if  the  master 
has  derived  advantage  from  the  service,  in  excess  of  the  amount 
of  injury  inflicted  on  him  by  the  servant's  misconduct  or  neglect 
of  duty,  the  servant  may  recover  the  excess  as  his  lawful  wages. 

Rem.  The  primary  conception  of  a  servant  as  a  member  of  a 
household  includes  the  idea  of  involuntary  subjection  to  a  master, 
and  though  this  relation  is  now  always  created  by  a  contract  it 
still  preserves  some  features  of  its  original  domestic  character. 
Thus  one  who  agrees  simply  to  render  services  to  an  employer, 
without  entering  his  family,  occupies  quite  a  different  relation 
to  the  master  from  that  of  one  who  by  his  contract  becomes  also 
a  member  of  the  master's  household.  This  difference  is  particu- 
larly apparent  in  the  personal  authority  which  the  master  has 
over  the  servant,  and  the  rights  and  privileges  which  they  enjoy 
against  third  parties. 

Read:  1  Bl.  Com.,  pp.  423-425; 
Clark,  Elementary  Law,  §  168; 
Schouler,  Domestic  Relations,  §§  460-490; 
Tiffany,  Domestic  Relations,  §§  248,  249; 
2  Parsons,  Contracts,  pp.  32-48; 
Ante,  §  165.  \ 

§  190.     Of  Apprentices. 

An  apprentice  is  a  servant  who  is  bound  out  to  a  master  to 
learn  some  art  or  trade.  This  relation  can  be  created  only  by 
an  indenture  to  which  the  master  and  the  apprentice,  and  if 
the  apprentice  is  an  infant  his  parent  or  guardian  also,  are 
made  parties;  though  where  an  infant  has  no  guardian  or 
parent,  and  the  learning  of  the  trade  is  necessary  to  prepare 
him  to  maintain  himself,  the  indenture  may  be  executed  on 
his  part  by  liim  alone.  An  apprenticeship  ceases  on  the  death 
of  the  master,  or  on  the  arrival  of  the  apprentice  at  the  age 
hmited  in  the  contract.  It  may  also  be  terminated  for  sufficient 
cause  by  the  decree  of  a  competent  court,  or  by  a  mutual  release 
between  the  parties.  During  its  continuance  the  apprentice 
is  a  member  of  the  household  of  the  master  and  is  supposed  to 
reside  therein.  The  master  has  control  over  his  person,  and 
may  command  his  time  and  labor  to  any  extent  within  the 
scope  of  the  contract;  and  all  the  results  of  his  service  to  third 
persons,  whether  rendered  with  or  without  the  consent  of  the 


§  191  MASTER  AND  SERVANT  219 

master,  belong  to  the  master  and  can  be  collected  by  him  for  his 
own  benefit.  The  apprentice  has  a  right  to  be  supported  by  the 
master,  to  be  properly  instructed  in  his  trade,  and  to  receive 
such  other  remuneration  as  the  indenture  provides.  A  master 
cannot  transfer  his  rights  over  the  apprentice  to  another  person, 
nor  send  the  apprentice  into  a  foreign  country,  nor  employ  him 
in  any  labor  not  contemplated  by  the  contract.  But  by  con- 
sent of  all  the  parties  the  entire  contract  of  apprenticeship  may 
be  assigned  to  another  master,  and  a  new  relation  thus  be 
substituted  for  the  old. 

Rem.  In  former  times  an  apprenticeship  to  a  master,  under 
the  general  regulations  above  described,  was  required  by  law  as 
a  necessary  preparation  for  the  exercise  of  any  trade  involving 
technical  skill  and  knowledge ;  and  the  domestic  relation  between 
a  master  and  apprentice  was  closely  assimilated  to  that  of  a 
parent  and  his  minor  ciiild.  In  modern  times  this  relation  has 
largely  lost  its  domestic  character,  for  the  reason  that  the  appren- 
tice does  not  ordinarily  become  a  member  of  the  master's  house- 
hold, but  resembles  rather  a  hired  employee,  of  more  or  less 
permanent  character,  who  receives  instruction  in  a  trade  in  com- 
pensation for  his  services.  The  tie  between  such  employees  and 
the  master  is  governed  partly  by  the  ancient  doctrines  of  appren- 
ticeship, and  partly  by  local  statutes. 

Read:  1  Bl.  Com.,  p.  426; 

2  Kent  Com.,  Lect.  xxxii,  pp.  201-260; 

Barbour,  Rights  of  Persons  and  Property,  pp.  269-282; 

Dwight,  Law  of  Persons  and  Property,  pp.  315-322; 

Walker,  American  Law,  §  125; 

Andrews,  American  Law,  §  517; 

Tiffany,  Domestic  Relations,  §  248; 

2  Parsons,  Contracts,  pp.  49,  50. 

§  191.     Of  the   Reciprocal  Rights   and  Duties   of   Masters   and 
Servants. 

To  the  relation  of  master  and  servant  pertain  all  those  rights 
and  duties  which  arise,  either  by  operation  of  law  or  by  agree- 
ment of  the  parties,  out  of  any  ordinary  contract  for  serinces. 
To  these  are  added  such  as  attach  to  the  family  aspect  of  the 
relation.  Thus  the  master  is  entitled  to  the  obedience  and  ser- 
vice of  the  menial  or  apprentice,  according  to  the  nature  of  the 
employment;  and  if  the  servant  is  an  infant  the  master  may 
use  a  reasonable  amount  of  force  to  compel  him  to  perform 


220  ELEMENTARY   LAW  §  192 

his  duties.  The  servant  has  a  right  to  proper  food  and  shelter 
in  the  household,  while  he  remains  a  member  of  the  family; 
to  suitable  clothing  when  the  duty  to  supply  it  rests  upon  the 
master;  and,  if  he  is  an  infant,  to  such  'protection  against  in- 
jury by  others  as  all  dependent  inmates  of  a  household  look 
for  from  their  family  head. 

Rem.  The  right  of  a  master  to  inflict  corporal  pnnishmevt 
upon  his  infant  menial  or  apprentice  grows,  not  out  of  the  con- 
tract for  services,  but  out  of  the  ^wa.si-parental  relation  which  he 
occupies  toward  them ;  and  this  right  in  former  times  was  recog- 
nized as  including  the  power  to  recapture  by  force  an  escaping 
apprentice,  and  to  invoke  the  aid  of  the  courts  in  imprisoning  him 
for  persistent  disobedience.  Under  the  milder  views  of  the 
present  day  the  limitations  upon  parental  authority,  which  forbid 
all  severe,  indecorous,  and  humiliating  methods  of  punishment, 
apply  also  to  the  rights  of  masters  over  the  persons  of  their  minor 
servants. 

Read:  1  Bl.  Com.,  pp.  427,  428; 

Tiffany,  Domestic  Relations,  §§  250-268; 

2  Parsons  on  Contracts,  pp.  50-52. 

§  192.     Of  the  Rights  of  Masters  and  Servants  as  against  Third 
Parties. 

The  rights  of  masters  and  domestic  servants  as  against  third 
parties  are  incidental  to  their  beneficial  interest  in  their  con- 
tract for  the  service.  The  master  has  a  right  to  enjoy  the  obedience 
and  services  of  the  menial  or  apprentice  free  from  the  inter- 
ference of  any  outside  party,  whether  by  beating  the  servant, 
or  by  enticing  him  away,  or  by  encouraging  him  in  a  neglect 
of  duty;  or,  if  the  servant  is  a  female,  by  her  seduction.  The 
servant  has  a  right  to  the  confidence  and  good  will  of  the  master, 
free  from  slanderous  imputations  upon  his  integrity  or  ability, 
and  from  intimidations  of  the  master  intended  to  procure  his 
discharge.  Domestic  servants  and  their  masters  may  defend 
each  other  against  external  violence  in  the  same  manner,  and 
with  the  same  degree  of  force,  that  they  could  employ  in  defend- 
ing themselves ;  and  masters  may  abet  such  servants  in  lawsuits, 
to  protect  or  vindicate  their  personal  or  property  rights,  as 
parents   can  assist  their  children  or  guardians  their  wards. 

Rem.  The  liability  of  masters  to  third  persons  for  wrongs 
committed  by  a  domestic  servant,  and  on  contracts  made  by  such 


§  193  FAMILY   HEAD   AND   DEPENDANTS  221 

a  servant  in  their  names,  is  governed  by  the  principles  and  rules 
applied  to  ordinary  employers  and  employees,  and  to  principals 
and  agents. 

Read:  1  Bl.  Com.,  pp.  429-432; 
3  Bl.  Com.,  p.  142; 

Tiffany,  Domestic  Relations,  §§  269-274; 
2  Parsons,  Contracts,  pp.  52,  53 


SECTION    V 

OF  THE  RIGHTS  .\RISIXG  OUT  OF  THE  RELATION  OF  FAMILY 
HEADS   AND  THEIR  DEPENDANTS. 

§  193.     Of  the  Family  Head. 

The  ancient  conception  of  a  unitary  household,  composed 
of  persons  variously  related  to  one  another  and  dwelling  under 
the  authority  and  protection  of  a  single  housefather,  is  also 
represented  in  modern  law  by  the  doctrine  of  a  family  head  and 
his  dependants.  A  family  head  is  the  owner  of  a  habitation 
in  which  reside,  under  his  direction  and  at  his  expense,  relatives 
by  blood  or  marriage  for  whose  support  he  might  be  justly 
though  not  legally  responsible.  He  need  not  be  a  parent,  a 
husband,  a  master,  or  a  guardian ;  nor  need  his  dependants 
be  so  nearly  related  to  him  as  to  have  any  right  to  his  assistance 
other  than  that  which  springs  from  natural  charity  and  good 
will  toward  the  members  of  the  same  domestic  society.  It  is 
sufficient  that,  taken  together,  these  individuals  constitute  for 
the  time  being  a  single  household,  sharing  a  common  fortune 
and  working  out  a  common  destiny. 

Rem.  Instances  in  which  the  courts  have  recognized  this  rela- 
tion make  evident  its  legal  character.  Such  are  the  proprietor  of 
a  home  in  which  his  adopted  daughter  and  her  husband  live  with 
him ;  a  brother  giving  shelter  under  his  own  roof  to  his  sisters ; 
a  son  with  whom  his  dependent  mother  dwells;  a  widow  having 
in  charge  the  children  of  a  deceased  sister,  or  the  step-children 
of  her  dead  husband,  or  her  own  destitute  adult  children.  In  all 
these  and  analogous  cases  there  exists  a  community  which  it  is 
the  manifest  interest  of  the  State  to  protect,  and  to  accord  to  it 
equal  if  not  higher  ])rivileges  than  ordinarily  belong  to  the  normal 
family. 

Read:   1  Wasliburn,  Real  Property,  §  547; 
Wharton,  Conflict  of  Laws,  §§  548-552. 


222  ELEMENTARY  LAW  '    §§  194,  195 

§  194.     Of  the  Reciprocal  Rights  of  the  Family  Head  and  his 
Dependants. 

The  reciprocal  rights  of  the  family  head  and  his  dependants 
are  determined  by  the  contract  or  quasi  contract  by  which  the 
family  relation  between  them  is  created.  No  obligation  between 
them  originates  by  operation  of  law;  but  having  formed  them- 
selves into  a  domestic  society  by  agreement  or  concurrent  action, 
the  law  imposes  on  them  certain  duties  with  reference  to  one 
another  as  long  as  they  remain  within  the  family.  The  family 
head  is  entitled  to  the  obedience  of  his  dependants  in  all  matters 
which  affect  the  welfare  of  the  household  as  a  whole,  and  to 
their  services  in  sustaining  the  common  burden  which  the  form 
of  the  family  organization  distributes  in  definite  tasks  among 
them.  The  dependants  have  a  right  to  the  reasonable  and 
proper  discharge  of  the  duty  which  the  family  head  has  assumed 
by  undertaking  their  protection  and  support. 

Rem.  The  legal  remedies  by  which  the  rights  of  a  family  head 
and  his  dependants  against  one  another  are  enforced  are  not  now 
so  far  developed  as  to  be  in  every  case  sufficient,  —  which  is 
true  also  in  the  normal  family;  but  where  the  parties  cannot 
separate  and  sunder  the  relation  some  form  of  process,  crimi- 
nal or  civil,  to  secure  their  rights  is  usually  available. 

§  195.     Of  the  Rights  of  a  Family  Head  and  his  Dependants  as 
against  Third  Persons. 

The  rights  of  a  family  head  and  his  dependent  as  against 
third  persons  have  never  yet  been  fully  enumerated  and  declared 
by  law.  So  far  as  now  defined  they  include  the  right  to  defend  the 
houseJwld  against  forcible  attacks ;  and  the  right  to  hold  the 
family  habitation  against  the  claims  of  creditors.  Where  the 
dependants  are  minor  children  the  family  head  stands  to  them 
in  loco  parentis,  and  can  assert  the  same  rights  as  a  father  to 
their  liberty  and  security.  Where  they  are  adults,  and  in- 
juries inflicted  on  them  by  third  parties  entail  upon  the  family 
head  an  individual  loss,  he  is  entitled  to  redress  as  a  master 
would  be  for  the  battery  of  a  servant.  The  rights  of  the  de- 
pendant to  the  freedom  of  the  family  head  from  such  unlawful 
injuries  or  interference,  as  would  impair  his  ability  to  render 
them  their  due  protection  and  support,  is  recognized  by  statutes 


§  195  FAMILY  HEAD  AND  DEPENDANTS  223 

in  many  of  our  States  which  afford  them  compensation  in  a 
suit  for  damages. 

Rem.  The  resuscitation  of  the  broader  conception  of  the 
family  by  the  legal  recognition  of  the  legal  relation  between  the 
family  head  and  his  dependants  is  due  largely  to  the  enactment  in 
this  country  of  two  classes  of  statutes  known  respectively  as  the 
"Civil  Damage  Acts  "  and  the  "Homestead  Exemption  Laws." 
The  Civil  Damage  Acts  were  intended  to  visit  the  consequences  of 
nefarious  trades  and  other  wrongful  conduct,  whereby  families 
were  ruined  or  impoverished  through  the  corruption  or  injury 
of  the  family  head,  upon  the  persons  engaged  in  the  objectionable 
trade  or  guilty  of  the  wrongful  conduct;  and  provided  methods 
by  which  compensation  for  such  consequences  could  be  obtained 
by  the  afflicted  family.  The  Homestead  Exemption  Laws  en- 
deavor to  protect  the  family  home  by  exempting  it  from  the 
claims  of  creditors,  —  an  enemy  sometimes  more  rapacious  than 
any  barbarous  foe.  Both  these  classes  of  statutes  differ  in  details 
in  our  different  States.  In  their  interpretation  by  the  courts  the 
nature  of  a  modern  household,  the  constitution  of  the  family  com- 
posing it,  and  the  relations  between  the  various  members  and 
the  family  head  have  gradually  been  elaborated  and  defined. 

Read:  Waslibiirn,  Real  Property,  §§  540-604; 
Cooley,  Torts,  pp.  242-274; 

Dwight,  Law  of  Persons  and  Property,  pp.  226-229; 
Andrews,  American  Law,  §§  51.3-515; 
Tiedeman,  Real  Property,  §§  158-164; 
Kerr,  Real  Property,  §§  1499-1610; 
Pingrey,  Real  Property,  §§  429-477; 
Rice,  Real  Property,  §§  425-4.34; 
Warvelle,  Real  Property,  pp.  82-84; 
Boone,  Real  Property,  §§  80  0-80^; 
Tiffany,  Real  Property,  §§  213-216,  499. 


BOOK  II 

OF   PRIVATE   WRONGS   AND   REMEDIES 

PART    I— OF    PRIVATE    WRONGS 

§  196.     Of  the  Nature  of  Private  Wrongs. 

A  private  wrong  is  the  unlawful  invasion  of  a  private  right. 
It  contains  two  ingredients:  (1)  The  Injuria;  and  (2)  The 
Damnum.  The  injuria  is  the  unlawful  action  or  omission 
which  causes  the  damnum.  The  damnum  is  the  loss  occasioned 
by  the  injuria  to  the  owner  of  the  invaded  right.  The  injuria 
always  must  exist  as  a  matter  of  fact.  The  damnum  may  exist 
as  a  matter  of  fact,  or  may  be  implied  by  law.  In  every  private 
wrong  both  these  ingredients  must  be  present :  and  hence 
results  the  rule  that  no  right  of  action  can  arise  either  out  of  a 
damnum,  absque  injuria  or  out  of  an  injuria  sine  damno. 

Rem.  It  is  sometimes  stated  that  from  an  injuria  sine  damno 
an  action  can  arise,  but  in  these  statements  the  word  damnum 
is  used  in  a  narrow  sense  as  covering  only  an  actual  'pecuniary 
loss.  In  its  broad  and  proper  sense,  including  implied  as  well 
as  actual  damage,  the  damnum,  equally  with  the  injuria,  is  an 
indispensable  ingredient  of  every  private  wrong. 

Read:  Rob.  Am.  Jur.,  §  142; 
Broom,  Com.,  pp.  70-94; 
Walker,  American  Law,  §  268; 
Clark,  Elementary  Law,  §§  94-98; 
Addison  on  Torts,  §§  1,  17,  18,  31,  32; 
Cooley  on  Torts,  pp.  62-68 ; 
Jaggard  on  Torts,  §§  27,  28. 

§  197.     Of  the  Forms  of  the  Injuria. 

The  injuria  may  consist  either  in  (1)  Malfeasance;  (2) 
Misfeasance;  or  (3)  Nonfeasance.  Malfeasance  is  the  doing 
of  that  which   the  doer  had  no  right  to  do,  and  is  always  a 


§  197  PRIVATE  WRONGS  225 

wrongful  act.  Misfeasance  is  the  doing,  in  an  improper  man- 
ner, of  that  which  the  doer  was  either  bound  to  do  or  had  a 
legal  right  to  do ;  and  involves  an  unlawful  excess  or  deficiency 
in  the  quantity,  quality,  or  method  of  the  act  performed.  Non- 
feasance is  the  not  doing  of  that  which  the  non-doer  was  under 
a  legal  obligation  to  do,   and  is  always  a  wrongful  oviission. 

Rem.  Another  classification  of  the  injuria,  characterized  by 
the  methods  in  which  it  may  be  committed,  is  into  (1)  Force; 
(2)  Fraud;  (3)  Conspiracy;  and  (4)  Negligence.  Force  is 
any  species  of  violence,  compulsion,  or  restraint,  exercised  by 
acts  or  words  over  or  against  the  personal,  or  property,  or  family 
rights  of  another.  When  it  produces  its  evil  consequences  with- 
out the  intermediate  operation  of  secondary  causes  it  is  called 
direct  force,  as  where  a  blow  is  struck  which  wounds  another. 
When  it  occasions  loss  only  through  the  operation  of  secondary 
causes  it  is  called  indirect  force,  as  where  a  log  is  cast  into  the 
highway  over  which  another  trips,  falls,  and  is  hurt.  Fraud 
is  the  unlawful  perversion  of  the  intellectual  conceptions  of 
another,  whereby  damage  is  caused  to  his  person  or  property. 
It  may  consist  in  wi/fid  deceit,  or  the  assertion  by  words  or  con- 
duct of  some  matter  of  fact  which  the  deceiver  knows  to  be  false 
or  does  not  know  to  be  true,  for  the  purpose  of  misleading  the 
other  party  and  actually  misleading  him  to  his  damage ;  or  it 
may  consist  in  an  intentional  suppression  of  the  truth  by  wilfully 
concealing  some  matter  of  fact  essential  to  the  transaction  but 
unknown  to  the  other  party,  and  which  honesty  and  fair  deal- 
ing would  compel  the  concealer  to  disclose;  or  it  may  consist 
in  negligent  misrepresentation  by  one  who  undertakes,  without 
due  investigation,  to  direct  the  judgment  and  guide  the  conduct 
of  other  persons  who  rely  upon  his  counsels,  and  are  thus  mis- 
led by  him  into  errors  which  occasion  loss ;  or  it  may  consist 
in  breach  of  trust,  which  is  the  violation  of  a  confidence  prudently 
and  lawfully  reposed  by  one  person  in  another  (Mther  as  the  re- 
sult of  a  contract,  or  of  a  legal  relationship,  or  of  the  natural  or 
accidental  dependence  of  one  upon  the  other.  In  many  wrongs 
fraud  may  be  the  etjuivalcnt  of  force,  by  inducing  a  consent  or 
preventing  a  resistance  to  unlawful  conduct;  but  its  principal 
operation  is  in  the  sphere  of  contracts,  where  it  contaminates 
every  agreement  into  which  it  enters  and  renders  it  void  at  the 
option  of  the  defrauded  party.  Conspirari/  is  the  combination 
of  two  or  more  persons  against  a  third  person  to  injure  him  in 
his  personal,  property,  or  family  rights,  by  committing  against 
him  some  unlawful  act  or  some  lawful  act  in  an  unlawful  manner. 
Any  wrong  whatever,  whether  involving  force  or  fraud  or  even 

15 


226  ELEMENTARY   LAW  §  198 

a  mere  neglect  of  duty,  may  be  the  subject-matter  of  a  conspiracy. 
A  casual  coincidence  of  will  and  effort  is  not  conspiracy;  there 
must  be  a  concert  of  intention  and  endeavor;  since  it  is  on 
account  of  the  accumulation  of  hostile  energy  against  a  single 
individual  that  the  law  takes  notice  of  a  conspiracy  as  a  wrong 
additional  to  that  contemplated  by  the  combination,  and  as  in 
itself  an  efficient  cause  of  loss  and  damage.  Negligence  is  the 
failure  to  perform  a  legal  duty.  It  may  consist  in  entire  inaction, 
or  in  the  insufficient  and  injurious  performance  of  a  lawful  act. 
It  may  be  intentional  or  unintentional.  Where  the  neglected 
duty  requires  only  the  exercise  of  a  slight  degree  of  care,  like 
that  of  the  depositary  of  a  chattel,  the  negligence  involved  in 
its  omission  is  called  slight  negligence.  Where  the  duty  demands 
the  exercise  of  ordinary  care,  like  that  of  a  pledgee,  the  cor- 
responding neglect  is  ordinary  negligence.  Where  the  law  at- 
taches to  the  duty  an  extreme  care,  like  that  of  a  common 
carrier  of  merchandise,  the  failure  to  perform  the  duty  is  gross 
negligence.  Intentional  gross  negligence  is  wanton  negligence, 
and  is  often  punished  as  a  crime. 

Read:  Rob.  Am.  Jur.,  §§  139,  140; 

Andrews,  American  Law,  §§  653-656,  659,  813-815; 
Clark,  Elementary  Law,  §§  111,  116,  124; 
Cooley  on  Torts,  pp.  60-62,  124-126,  473-506,  630,  631; 
Jaggard  on  Torts,  §§  187-194,  205-207,  246-269. 


§  198.     Of  the  Causal  Relation  between  Injiuria  and  Damnum. 

In  every  private  wrong  not  only  must  the  injuria  and  the 
damnum  concur,  but  the  injuria  must  also  bear  to  the  damnum 
a  true  and  evident  causal  relation.  Their  coincidence  in  point 
of  time  and  place  is  not  enough,  nor  yet  the  fact  that  they  are 
so  connected  that  the  damnum  would  not  have  occurred  unless 
the  injuria  had  been  committed.  It  is  necessary  that  the  dam- 
num should  be  the  natural  and  'proximate  consequence  of  the 
injuria;  that  is,  that  according  to  the  ordinary  experience  of 
mankind  the  damnum  might  have  been  expected,  under  all 
the  circumstances,  to  have  resulted  from  the  unlawful  act. 
But  a  damnum  which  is  remote  and  improbable,  or  Avhich  arises 
from  the  intervention  of  contingent  secondary  causes  or  from 
the  subsequent  conduct  of  the  injured  party,  is  not  so  related 
to  the  injuria  that  their  concurrence  constitutes  a  private  wrong. 
Where  the  injuria  is  a  mere  breach  of  contract  the  damnum 
embraces   only   those    consequences   of   the  breach   which   the 


I 

I 


§  199  PRIVATE  WRONGS  227 

parties  to  the  contract  may  be  supposed  to  have  foreseen,  when 
the  contract  was  made. 

Rem.  Possibly  all  events  occurring  in  the  universe  may  have 
some  dependence  upon  one  another,  so  that  none  of  them  would 
ever  happen  unless  all  the  others  had  been  or  were  about  to  be, 
and  thus  the  relation  of  cause  and  consequence  may  subsist 
between  each  of  them  and  every  other.  But  human  responsi- 
bihty  cannot  be  measured  by  such  standards;  and  when  the 
law  attempts  to  fix  it,  as  of  course  it  must,  the  causal  relation 
which  it  recognizes  must  be  limited  within  bounds  which  are 
definite  and  easily  discerned,  and  which  guard  the  rights  both 
of  the  injured  and  the  injurer.  According  to  the  universal 
dictates  of  justice  and  reason  every  person  may  safely  act  in 
view  of  the  natural  and  probable  consequences  of  his  conduct. 
A  narrower  rule  would  make  it  utterly  unsafe  to  act  at  all ;  and 
hence  the  law  refuses  to  hold  any  one  responsible  except  for 
those  proximate  results  of  his  wrongdoing  which,  in  the  light 
of  ordinary  human  experience,  a  prudent  man  would  have 
expected  to  occur. 

Read:  Broom,  Com.,  pp.  95-98; 

Barbour,  Rights  of  Persons  and  Property,  pp.  760,  761 ; 

Andrews,  American  Law,  §  657; 

Clark,  Elementary  Law,  §  100; 

Addison  on  Torts,  §  33 ; 

Cooley,  on  Torts,  pp.  68-80; 

Pollock  on  Torts,  pp.  29-57; 

Jaggard  on  Torts,  §§  22-26; 

2  Greenleaf,  Evidence,  §§  253-278. 

§  199.     Of  the  Classes  of  Private  Wrongs. 

As  every  private  wrong  is  the  invasion  of  a  private  right  the 
logical  classification  of  private  wrongs  corresponds  with  that 
of  private  rights,  dividing  them  into:  (1)  Wrongs  against 
Personal  Rights;  (2)  \Yrongs  against  Property  Rights;  and 
(3)  Wrongs  against  Family  Rights.  These  classes  further 
subdivide  into  various  species  of  wrongs  against  the  different 
personal,  property,  and  family  rights.  Another  classification 
of  private  wrongs,  based  on  the  form  of  the  remedy  which  the 
law  affords  for  their  violation,  is  into  Torts  and  Breaches  of 
Contract.  This  classification  was  once  accurate  and  has  exer- 
cised great  infiucnce  over  the  doctrine  both  of  wrongs  ajid 
remedies,  but  has  become  obscured  by  the  legal  recognition 
of  new  wrongs  and  the  introduction  of  new  remedies  until  it 


228  ELEMENTARY   LAW  §  199 

no  longer  serves  to  separate  private  wrongs  into  two  distinct 
and  well-defined  groups. 

Rem.  In  ancient  times  the  common  law  attempted  to  redress 
but  two  classes  of  private  wrongs;  those  consisting  in  acts  of 
violence,  and  those  arising  from  breach  of  contract;  and  for  each 
of  these  it  provided  different  modes  of  remedy.  The  former 
class  became  known  as  torts,  because  involving  elements  of 
wilful  wrong  not  necessarily  embraced  in  a  mere  failure  to  per- 
form a  contract ;  and  thus  there  grew  up  a  law  of  torts  covering 
both  wrongs  and  remedies  ex  delicto,  and  a  law  of  contracts 
governing  wrongs  and  remedies  ex  contractu.  Later,  in  1285 
A.  D.,  wrongs  committed  without  violence,  such  as  negligence 
and  fraud,  were  by  statute  admitted  to  the  rank  of  actionable 
wrongs,  and  provided  with  a  remedy  similar  to  those  already 
applied  to  torts ;  and  as  many  of  these  new  wrongs  might  be 
breaches  of  contract  as  well  as  torts,  and  could  thus  be  redressed 
also  in  actions  ex  contractu,  the  distinction  between  the  wrongs 
as  belonging  to  different  classes  was  gradually  diminished,  while 
that  between  the  remedies  remained  until  the  ancient  forms  of 
action  were  superseded  by  the  ''New  Procedure"  introduced  in 
the  last  century  by  statute.  Notwithstanding  these  changes, 
however,  a  very  large  proportion  of  those  detailed  rules  govern- 
ing wrongs  and  remedies  which  are  now  in  force  were  elabo- 
rated and  established  while  these  distinctions  prevailed,  and  the 
learning  of  the  law  concerning  them  is  by  no  means  rendered 
obsolete  by  the  apparent  merger  of  these  classes  into  one  another. 

Read:  Rob.  Am.  Jur.,  §§  143-145; 
Cooley  on  Torts,  pp.  2-4,  90-96; 
Pollock  on  Torts,  pp.  1-6,  644-646; 
Jaggard  on  Torts,  §§  1-9. 


200  WRONGS   AGAINST   PRIVATE   RIGHTS  229 


CHAPTER   I 

OF    PRIVATE    WRONGS    AGAINST    PERSONAL    RIGHTS 

§  200.     Of    the    Species    of    Private    Wrongs    against    Personal 
Rights. 

Private  wrongs  against  personal  rights  invade  the  rights  of 
personal  security  and  personal  liberty.  They  prevent  or  cur- 
tail the  legal  enjoyment  of  life,  limbs,  body,  health  or  reputa- 
tion ;  or  hinder  that  normal  freedom  of  action  which  the  law 
guarantees  to  every  citizen.  Those  which  infringe  the  right 
to  life,  limbs,  and  body  are  of  two  species:  (1)  Threats;  and 
(2)  Violence.  Those  which  attack  health  are  of  various  kinds, 
embraced  under  one  common  species  called  Nuisances  to 
Health.  Those  which  invade  the  right  to  reputation  are  of 
three  species :  (1)  Libel;  (2)  Slander;  (3)  Malicious  Prosecu- 
tion. Those  which  obstruct  freedom  of  action,  by  direct  in- 
terference with  the  person,  are  known  as  False  Imprisonment. 
Those  which  indirecthj  restrain  persorial  liberty  are  forms  of 
fraud,  conspiracy,  attacks  on  reputation,  property  or  person, 
or  invasions  of  family  rights. 

Rem.  A  single  wrongful  action  or  omis.sion  may  sometimes 
infringe  several  private  rights,  and  thus  entitle  the  sufferer  to 
several  private  remedies.  Thus  the  slander  of  a  servant  may 
not  only  impair  his  n-putation,  but  also  deprive  him  of  the  op- 
portunity to  labor,  and  thus  affect  his  liberty  of  contract.  Or  a 
false  imprisonment  may  involve  violence  against  the  body  as 
well  as  a  privation  of  personal  liberty.  Sometimes  these  injuries 
are  sufficiently  distinct  to  permit  a  separate  remedy  to  be  pur- 
sued for  each ;  in  other  cases  they  so  merge  in  one  another  that 
the  injured  jiarty  by  selecting  one  remedy  relin(juishes  the 
others. 

Read:  Cooley  on  Torts,  pp.  24-29; 
Pollork  on  Tort.s,  p.  7. 


230 


ELEMENTARY   LAW 


§201 


SECTION    I 

OF  PRIVATE  WRONGS  AGAINST  THE  RIGHT  OF  PERSONAL 
SECURITY 

§  201.     Of  Threats. 

A  threat  is  the  manifestation  by  one  person  of  an  intent  to 
do  unlawful  violence  to  another.  This  intent  may  be  mani- 
fested by  words  or  actions ;  when  by  words  it  is  called  a  Men- 
ace ;  when  by  actions  it  is  known  as  an  Assault.  A  menace  is 
an  oral  or  written  declaration  of  a  purpose  to  inflict  unlawful 
corporal  injury  upon  another.  An  assault  is  an  intentional 
attempt  to  inflict  immediate  unlawful  violence  upon  another, 
by  one  who  has  the  apparent  present  ability  to  render  the  attempt 
successful.  Thus  a  wrongful  endeavor  to  strike  another  who 
is  within  striking  distance,  if  the  endeavor  fails,  is  an  assault. 
The  unlawful  intent  is  fresumed  from  the  wrongful  endeavor 
unless  other  circumstances  indicate  its  absence;  as  where  the 
apparent  effort  is  accompanied  by  declarations  showing  that 
the  supposed  assailant  does  not  intend  his  blow  to  take  effect. 
But  to  couple  with  the  threatening  act  an  offer  to  refrain  from 
violence,  if  the  victim  will  perform  conditions  which  the  assail- 
ant has  no  right  to  impose,  does  not  rebut  the  presumed  intent, 
nor  prevent  the  threatening  act  from  being  a  complete  assault. 
An  assault  may  be  committed  not  only  by  striking,  but  by  any 
other  act  whose  natural  and  direct  consequence,  if  uninter- 
rupted, would  be  the  infliction  of  a  legal  injury  upon  the  body 
of  the  person  attacked. 

Rem.  From  an  assault  the  law  implies  damage,  and  hence 
an  assault  is  always  a  wrong  and  is,  therefore,  actionable.  But 
the  law  implies  no  damage  from  a  mere  menace  which,  though 
it  may  be  a  crime  because  it  disturbs  the  public  peace,  does  not 
become  a  private  wrong  unless  it  causes  actual  loss  to  the  party 
menaced,  as  by  deterring  him  from  pursuing  his  ordinary 
business. 

Read:  3  Bl.  Com.,  p.  120; 

Addison  on  Torts,  §§  115,  116; 

Cooley  on  Torts,  pp.  29,  160,  161,  506; 

Pollock  on  Torts,  pp.  249-258- 

Jaggard  on  Torts,  §  148. 


§  202       WRONGS  AGAINST  PERSONAL  SECURITY  231 

§  202.     Of  Violence. 

Violence  is  the  unlawful  forcible  infliction  of  physical  injury 
upon  the  person  of  another.  It  is  of  four  degrees;  (1)  Battery; 
(2)  Wounding ;  (3)  Mayhem ;  and  (4)  Homicide.  Battery 
is  any  intentional  wrongful  act  of  one  person,  whereby  either 
he  or  his  instrument  of  wrongdoing  is  brought  into  contact  with 
the  Umbs  or  body  of  another,  or  with  some  object  so  connected 
with  his  body  as  to  be,  for  the  time  being,  legally  identified 
with  his  person.  A  negligent  or  accidental  touching  of  another 
is  not  a  battery,  unless  the  negligence  is  so  gross  as  to  be  the 
legal  equivalent  of  intentional  violence.  A  wounding  is  a  bat- 
tery producing  some  serious  and  dangerous  lesions  of  the  tissues 
of  the  body.  A  mayJiem  is  a  battery  which  deprives  its  victim 
of  a  limb  or  of  its  use,  thus  rendering  him  less  able  to  defend 
himself  or  annoy  his  adversary.  A  homicide  is  an  action  or 
omission  which  causes  the  death  of  another. 

Rem.  The  person  of  an  individual  extends  beyond  the  con- 
fines of  his  bodily  frame  to  other  objects,  so  connected  with  it 
that  the  security  of  the  person  necessitates  the  protection  of 
these  also.  Thus  to  strike  the  clothing  which  he  wears,  or  the 
horse  which  he  rides,  or  the  cane  which  he  carries,  is  a  battery; 
and  like  every  other  form  of  violence,  however  slight,  is  action- 
able. A  homicide  was  formerly  regarded  as  not  the  subject  of 
an  action  because  the  victim,  being  dead,  could  not  himself 
pursue  his  legal  remedy,  and  no  other  person  had  sustained  an 
injury  for  which  an  action  would  lie.  But  modern  rules  permit 
his  legal  representatives  to  recover  damages  for  the  pain  he 
suffered  from  the  injury  before  his  death ;  and,  in  some  States, 
even  for  the  loss  of  life  itself.  The  consent  of  the  injured  party 
to  the  violence  does  not  excuse  the  off(>nce  of  the  wrongdoer, 
since  the  right  of  personal  security  is  on(>  which  its  possessor  can- 
not waive  in  favor  of  the  perpetrator  of  an  unlawful  act;  but 
after  the  act  has  been  committed  the  victim  may  release  him 
from  his  liability  for  damages. 

Read:  3  Bl.  Com.,  pp.  120,  121; 
Clark,  Elementary  Law,  §  106; 
Addison  on  Torts,  §§  117-126; 
Cooley  on  Torts,  pp.  162-169; 
Pollock  on  Torts,  pp.  185-191,  247-249; 
Jaggard  on  Torts,  §§  149-151. 


232  ELEMENTARY  LAW  §§  203,  204 

§  203.     Of  Nuisances  to  Health. 

A  nuisance  to  health  is  any  unlawful  act  or  omission  of  one 
person,  not  amounting  to  actual  or  legal  violence,  whereby 
the  health  or  comfort  of  another  person  is  impaired.  The 
injurious  influence  of  the  nuisance  may  be  exerted  directly  on 
the  body,  or  indirectly  through  the  mind  or  moral  sensibilities, 
but  it  is  essential  to  the  wrong  that  the  physical  organism  be 
affected  to  some  degree.  The  forms  of  this  injury  are  number- 
less. Disturbing  noises,  indecent  spectacles,  disagreeable 
odors,  objects  or  actions  exciting  reasonable  apprehensions  of 
immediate  danger,  the  pollution  of  drinking  water,  the  adultera- 
tion of  foods,  the  contamination  of  the  atmosphere  by  poisonous 
vapors,  are  a  few  among  the  many  methods  by  which  this 
wrong  is  perpetrated. 

Rem.  A  strictly  lawful  action  or  omission  cannot  be  a  nuis- 
ance, whatever  its  injurious  effects  may  be  upon  the  health  of 
persons.  Thus  where  the  State  enjoins  an  act  or  forbearance 
in  the  interest  of  the  people  whom  it  governs,  those  individuals 
who  suffer  from  it  in  health  or  comfort  sustain  no  legal  injury, 
since  private  welfare  must  yield  to  the  public  good.  But  an  act, 
which  would  be  lawful  if  it  did  not  prejudice  the  health  of  others, 
may  become  unlawful  from  the  mere  fact  that  harmful  conse- 
quences follow  its  commission;  as  where  a  noisy  or  offensive 
trade  established  in  a  desolate  region  is  lawful  while  the  neigh- 
borhood remains  uninhabited,  but  becomes  a  nuisance  with 
the  influx  of  a  settled  population  whose  peace  and  health  it 
seriously  disturbs. 

Read:  3  Bl.  Com.,  pp.  122,  123; 
Clark,  Elementary  Law,  §  123; 
Addison  on  Torts,  §§  370-375; 
Cooley  on  Torts,  pp.  565,  566,  596-627; 
Pollock  on  Torts,  pp.  484-491,  499-508. 

§  204.     Of  Libel. 

A  libel  is  the  wilful  and  malicious  publication,  in  a  per- 
manent and  visible  form,  of  some  matter  tending  to  injure  the 
reputation  of  another.  Libellous  matter  includes  anything 
which  naturally  produces  an  impression  derogatory  to  the 
character  of  tlie  person  libelled,  or  disgraces  or  degrades  or 
renders  him  ridiculous  in  tlie  eyes  of  others,  or  in  any  way 
impairs  his  social  standing.     Such  matter  is  in  libellous  form 


I 


§  205       WRONGS  AGAINST   PERSONAL   SECURITY  233 

when  expressed  in  writing,  printing,  signs,  effigies,  pictures, 
or  any  other  persisting  method  which  conveys  the  Ubellous 
ideas.  Libellous  matter  is  'published  when  it  is  communicated 
to  a  single  person  other  than  its  author,  or  when  it  is  printed 
in  a  book  or  paper  prepared  for  circulation.  Malice  is  an 
essential  ingredient  in  libel,  but  is  presumed  from  the  fact  of 
publication  unless  the  published  matter  be  a  privileged  com- 
munication. Libel  is  always  an  actionable  wrong,  for  the  law 
implies  damage  if  none  in  fact  exists;  and  every  person  who 
participates  in  it,  whether  as  author,  publisher,  or  distributor, 
is  liable  for  all  the  loss  occasioned  by  it  to  the  injured  party. 
In  suits  for  lil)el  the  publisher  may  prove,  if  he  can,  the  truth 
of  the  libellous  matter;  in  some  States  as  a  complete  justifica- 
tion of  his  act ;  in  others,  as  rebutting  the  presumption  of  malice 
or  in  mitigation  of  damages. 

Rem.  A  privileged  coinvinvication  is  a  communication  which 
the  publisher  has  a  legal  right  to  make,  whatever  may  be  its 
character  or  its  effect  upon  other  persons.  Thus  the  allegations 
in  pleadings  in  civil  cases  or  in  an  indictment  in  a  criminal  case; 
statements  in  pul)lic  journals,  concerning  matters  of  public 
interest,  made  in  good  faith,  and  without  actual  malice,  from 
personal  knowledge  or  on  ajiparently  reliable  information ; 
confidential  disclosures,  without  actual  malice,  of  matter  which 
the  ))ul)lisher  has  reasonable  ground  for  believing  to  be  true, 
and  which  it  is  his  duty  to  impart  to  the  readers  for  the  protec- 
tion of  their  lives  or  property,  —  fall  within  the  class  of  privi- 
leged communications.  But  a  communication  made  with  actual 
malice  is  never  privileged,  unless  made  in  the  discharge  of  an 
official  duty. 

Read:  3  Rl.  Com.,  pp.  125,  126; 
Clark,  Elementary  Law,  §  110; 
Addison  on  Torts,  §§  15.3,  154,  164-214; 
Cooley  on  Torts,  pp.  19.3-195.  204-220; 
Pollock  on  Torts,  pp.  286-289,  304-347. 

§  205.     Of  Slander. 

Slander  is  the  wilful  and  malicious  publication,  by  spoken 
words,  of  some  matter  tending  to  injure  the  reputation  of  another. 
Slanderous  matter  is  of  two  kinds:  (1)  Matter  actionable  per 
se,  from  which  the  law  implies  damage  and  for  which  a  legal 
remedy  is  always  available;  (2)  Matter  not  actionable  per  se, 
from  which  the  law  does  not  imply  damage,  and  which  is  never 


234 


ELEMENTARY   LAW 


§  205 


actionable  unless  uttered  with  express  malice  and  causing 
actual  loss  to  the  person  slandered.  Four  species  of  slander 
are  actionable  per  se:  (1)  Those  which  charge  a  crime  in- 
volving grave  moral  turpitude,  or  punishable  with  a  degrading 
penalty ;  (2)  Those  which  impute  an  infectious  disease,  ren- 
dering its  victim  obnoxious  to  society;  (3)  Those  which  tend 
to  injure  the  credit  of  a  person  in  his  trade  or  profession,  by 
charging  him  with  a  want  of  that  ability,  integrity,  or  financial 
responsibihty  which  are  necessary  to  its  safe  and  successful 
direction;  (4)  Those  which  assert  that  the  incumbent  of  an 
office,  to  which  pecuniary  emoluments  are  attached,  is  unfit 
for  his  position.  From  the  utterance  of  words  slanderous 
per  se  malice  is  always  presumed  unless,  as  in  the  case  of  libel, 
the  communication  was  privileged ;  words  not  slanderous  per 
se  raise  no  presumption  of  malice,  and  will  not  sustain  an  action 
unless  the  malice  is  affirmatively  proved.  All  persons  engaged 
in  the  promulgation  of  a  slander,  whether  as  authors  or  repeaters 
and  whether  believing  in  its  truthfulness  or  not,  are  liable  for 
the  injury  which  their  utterance  of  it  may  occasion.  In  actions 
for  slander  the  defendant  may  justify  his  conduct  by  proving 
the  truth  of  the  accusation  he  has  made ;  or  may  show  his  reason- 
able belief  in  its  truth  to  relieve  himself  from  the  infliction  of 
punitive  damages. 

Rem.  To  constitute  a  malicious  publication  the  derogatory 
words  must  have  been  spoken  with  an  apparent  intention  to 
defame  the  person  to  whom  they  refer,  and  must  have  been  so 
understood  by  the  hearers.  Thus  words  of  abuse  ejaculated  in 
the  heat  of  passion  during  a  quarrel,  and  not  regarded  by  the 
auditors  as  an  attack  upon  the  reputation  of  the  party  to  whom 
they  were  addressed;  or  words  spoken  in  fun;  or  words  not 
comprehended  by  the  hearers;  or  words  taken  by  the  hearers 
in  an  evil  sense  when  they  are  equally  open  to  a  harmless  in- 
terpretation which  was  the  one  really  intended  by  the  speaker,  — 
are  not  slanderous,  though  they  might  have  been  so  if  uttered 
with  a  different  purpose  and  intent. 

Read:  3  Bl.  Com.,  pp.  123-125; 

Clark,  Elementary  Law,  §§  110,  112; 
Addison  on  Torts,  §§  153,  155-163; 
Cooley  on  Torts,  pp.  195-204; 
Pollock  on  Torts,  pp.  289-304; 
Jaggard  on  Torts,  §§  165-182; 
2  Gi-eenleaf.  Evidence,  §§  410-429. 


§  206       WRONGS  AGAINST  PERSONAL  SECURITY  235 

§  206.     Of  Malicious  Prosecution. 

Malicious  prosecutlun  is  the  malicious  preferment  against 
another  of  a  groundless  criminal  charge,  without  probable 
cause  and  to  his  actual  damage.  A  groundless  criminal  charge 
is  one  the  prosecution  for  which  terminates  in  favor  of  the 
accused,  either  by  a  verdict  of  acquittal  or  by  the  voluntary 
act  of  the  public  prosecutor.  A  want  of  'probable  cause  exists 
unless  the  complainant  had  personal  knowledge  of  such  facts 
as  would  have  led  a  reasonable  and  prudent  man  to  believe 
in  the  guilt  of  the  accused.  Malice  may  be  inferred  from  the 
want  of  probable  cause,  but  this  inference  may  be  rebutted 
by  proof  that  the  complainant  acted  in  good  faith  and  upon 
the  mistaken  conviction  that  the  charge  was  true.  An  actual 
loss  of  reputation  occurs  when  the  charge  is  preferred  and  the 
prosecution  instituted,  although  the  complaint  may  not  be 
pressed  nor  any  interference  with  property  or  liberty  result. 
The  preferment  of  an  accusation,  whose  truth  is  demonstrated 
by  a  subsequent  conviction,  is  not  an  actionable  wrong,  what- 
ever may  have  been  the  malice  or  the  motive  of  the  accuser. 

Rem.  It  is  the  interest  of  the  State  that  criminals  should  be 
punished,  and  hence  when  private  persons  give  information 
of  supposed  offences  to  the  proper  officers  the  law  protects 
them  against  liability  to  the  accused,  unless  the  complaint  was 
prompted  by  malice,  was  without  foundation,  was  unsupported 
by  probable  cause,  and  has  produced  actual  injury  to  the  ac- 
cused in  his  person,  property,  or  reputation.  A  malicious  and 
groundless  civil  action,  entaihng  loss  to  the  defendant,  is  often 
classed  with  malicious  prosecution  as  a  violation  of  personal  and 
property  rights;  but  in  its  nature  it  is  a  distinct  private  wrong, 
and  in  some  States  is  made  actionable  by  special  statutes. 

Read:  3  Bl.  Com.,  pp.  126,  127; 

Clark,  Elementary  Law,  §§  113,  114; 
Addison  on  Torts,  §§  215-229; 
Cooley  on  Torts,  pp.  180-192; 
Pollock  on  Torts,  pp.  392-401 ; 
Jaggard  on  Torts,  §§  195-204; 
2  Greenleaf,  Evidence,  §§  449-459. 


236  ELEMENTARY   LAW  §§  207,  208 


SECTION    II 

OF  PRIVATE  WRONGS  AGAINST  THE  RIGHT  OF  PERSONAL  LIBERTY 

207.     Of  False  Imprisonment. 

False  imprisonment  is  the  unlawful  forcible  detention  of 
nother.  Every  confinement  or  restraint  of  the  person  in  any 
manner,  or  in  any  place,  or  for  any  period  of  time  is  an  im- 
prisonment;  and  is  unlawful  in  every  case  where  it  is  not  ex- 
pressly authorized  by  law.  Even  when  authorized  by  law  it 
is  unlawful  unless  it  be  in  the  mode,  in  the  place,  in  the  degree, 
and  at  the  time  prescribed  by  law.  All  persons  procuring  or 
voluntarily  aiding  in  a  false  imprisonment  are  responsible  for 
the  injury;  and  where  no  actual  damage  can  be  proved  the 
law  implies  a  damage  from  the  imprisonment  itself. 

Rem,  An  imprisonment  may  be  forcible  without  the  applica- 
tion of  direct  force  to  the  person,  provided  it  involves  a  physical 
restraint.  Thus  to  lock  the  person  in  a  building,  or  obstruct 
his  passage  in  whichever  way  he  wills  to  go,  or  transport  him  in 
a  vehicle  in  a  direction  contrary  to  his  choice,  though  no  battery 
be  committed  against  him,  is  an  imprisonment. 

Read:  3  Bl.  Com.,  p.  127; 

Clark,  Elementary  Law,  §  107; 
Addison  on  Torts,  §§  128-135; 
Cooley  on  Torts,  pp.  169-180; 
Pollock  on  Torts,  pp.  259-269; 
Jaggard  on  Torts,  §§  141-14Z 

§  208.     Of  Indirect  Violations  of  Personal  Liberty. 

Personal  liberty  includes  not  only  freedom  of  physical  loco- 
motion, but  also  immunity  from  interference  in  all  lawful 
activities ;  and  is  therefore  invaded  by  any  conduct  of  one  per- 
son which  places  an  unlawful  restriction  upon  the  bodily  or 
mental  energies  of  another.  Such  a  restriction  may  result: 
(1)  From  fraudulent  misrepresentations,  whereby  persons  are 
misled  into  actions  and  forbearances  which,  but  for  this  mental 
coercion,  they  would  never  have  performed  and  which  subject 
them  to  personal  hardship  and  privation;  (2)  From  con- 
spiracies directed  against  freedom  of  individual  action,  as  in 
combinations    to   prevent   other   persons   from   engaging   in    a 


§  208        WRONGS  AGAINST  PERSONAL  LIBERTY  237 

lawful  trade;  (3)  From  attacks  on  refutation,  property,  or 
person  calculated  to  deter  their  victim  from  pursuing  any 
chosen  enterprise;  (4)  From  unwarrantable  interference  with 
the  vnfe  or  child  or  servant  of  another,  in  order  to  deprive  the 
husband,  parent,  or  master  of  their  assistance  in  carrying  out 
his  own  designs. 

Rem.  This  field  of  private  wrongs  is  as  yet  but  partially  de- 
veloped in  detail ;  but  the  modern  recognition  of  freedom  of 
labor  and  capital  as  one  form  of  personal  liberty  has  compelled 
the  law  to  treat  as  torts  against  the  person  many  injuries  which 
formerly  were  regarded  merely  as  breaches  of  contract  or  in- 
vasions of  family  rights. 

Read  :  Cooley  on  Torts,  pp.  275-301 ; 
Addison  on  Torts,  §  §  G^8 ; 
Pollock  on  Torts,  pp.  283-285,  401-411; 
Jaggard  on  Torts,  §§  204-207. 


238  ELEMENTARY  LAW  §  209 


CHAPTER  II 

OF    PRIVATE    WRONGS    AGAINST   PROPERTY   RIGHTS 

§  209.     Of  the  Nature  and  Species  of  Wrongs  against  Property 
Rights. 

Wrongs  against  'property  rights  are  wrongs  which  disturb 
the  owner  of  property  in  the  lawful  acquisition,  enjoyment,  or 
disposal  thereof.  They  may  violate  either  the  right  of  owner- 
ship or  the  right  of  possession,  or  both  of  these  rights.  Those 
which  affect  rights  in  real  property  are  of  ten  species:  (1)  Dis- 
seisin; (2)  Abatement;  (3)  Intrusion;  (4)  Discontinuance; 
(5)  Deforcement;  (6)  Ouster;  (7)  Trespass;  (8)  Nuisance; 
(9)  Waste;  (10)  Disturbance.  Those  which  invade  rights  in 
personal  property  are  of  six  species:  (1)  Asportation;  (2)  De- 
tention ;  (3)  Damage ;  (4)  Conversion ;  (5)  Breach  of  Con- 
tract;   (6)  Malicious  Interference  with  Contract. 

Rem.  Property  rights  are  rights  of  possession  or  rights  of 
ownership.  Rights  of  possession  find  expression  in  the  use  and 
enjoyment  of  the  property,  and  are  violated  by  every  unlawful 
act  or  omission  of  another  party  which  interferes  with  its  control. 
Rights  of  ownership  are  legal  relations  which  are  not  affected  by 
the  unlawful  conduct  of  other  persons,  unless  the  subject  of 
ownership  is  diminished  in  value  or  destroyed.  But  every  wrong 
which  diminishes  the  value  or  terminates  the  existence  of  an 
article  of  property  at  the  same  time  violates  possessory  rights; 
and  hence  when  ownership  and  possession  reside  in  the  same 
person  the  law  regards  such  injuries  as  invasions  of  possession, 
and  gives  the  owner  his  redress  in  actions  suited  to  that  form  of 
injury.  But  where  possession  and  ownership  are  temporarily 
separated,  as  where  the  ownership  resides  in  a  landlord  or 
bailor  while  the  possession  vests  in  a  tenant  or  bailee,  a  single 
wrongful  act  may  constitute  two  injuries,  one  to  the  ownership, 
the  other  to  the  possession ;  and  the  owner  and  possessor  both 
may  have  their  proper  legal  remedies  against  the  perpetrator 
of  the  wrong.  This  distinction  is  important  in  reference  to  many 
details  of  procedure. 


§  210  WRONGS  AGAINST  REAL  PROPERTY  239 

Read:  3  Bl.  Com.,  pp.  144,  167; 

Addison  on  Torts,  §§231,  262-278,  419-456,  546-553; 
Cooley  on  Torts,  pp.  355,  498-510; 
Pollock  on  Torts,  pp.  412-418; 
Jaggard  on  Torts,  §§  208-210. 


SECTION  I 

OF  PRIVATE  WRONGS  AGAINST'  RIGHTS  IN  REAL  PROPERTY 

§  210.     Of  Disseisin.  J\^ 

Disseisin  is  the  unlawful  entity  of  one  person,  under  a  claim 
of  ownership,  into  the  land  of  another  and  excluding  the  true 
owner  therefrom.  This  injury  can  be  committed  only  against 
a  person  who  is  already  in  possession  of  the  land.  The  entry 
must  be  open,  and  with  the  actual  or  presumed  knowledge 
of  the  true  owner;  and  the  occupation  in  which  it  results  must 
be  defined  by  limited  and  perceptible  boundaries,  so  that  the 
area  to  which  the  disseisor  claims  title  can  be  clearly  discerned 
by  the  real  owner  of  the  land.  The  ejfect  of  such  an  entry  is 
to  deprive  the  true  owner  of  the  seisin  which  is  the  symbol  of 
his  ownership,  and  to  vest  a  seisin  and  apparent  ownership  in 
the  disseisor  which  will  continue  until  the  actual  owner  re- 
enters and  expels  him.  A  disseisin  may  be  commilted  by  a 
stranger  to  the  land,  or  by  a  tenant  against  his  landlord,  or 
by  one  co-tenant  against  another.  During  the  disseisin  the 
law  regards  the  disseisor  as  the  legal  owner  of  the  land,  and 
upon  his  death  intestate  will  transmit  it  to  his  heirs;  and  if 
he  holds  it  until  the  right  of  the  true  owner  to  enter  is  barred 
by  the  Statute  of  Limitations  he  will  himself  become  the  owner 
of  the  land,  under  a  title  by  adverse  possession. 

Rem.  The  attributes  of  a  true  and  complete  disseisin  are 
identical  with  those  ])redicated  of  adverse  possession  as  a  means 
by  which  title  to  land  may  be  acquired.  When  set  up  by  the 
disseisor  as  the  foundation  of  his  title,  all  these  attributes  must 
be  alleged  and  j)roved.  But  to  disseisin,  considered  as  a  wrong 
for  which  the  owner  of  the  land  may  bring  an  action,  not  all 
these  attributes  are  necessary.  Thus  where  a  wrongful  entry 
has  been  made,  and  it  is  doubtful  whether  the  owner  has  been 
actually  excluded,  or  whether  the  entry  is  with  claim  of  title, 
he  may  treat  the  entry  as  a  trespass  or  a  disseisin  at  his  election, 


240 


ELEMENTARY   LAW 


§211 


and  sue  to  vindicate  either  his  possessory  rights  or  his  right  of 
ownership. 

Read:  3  Bl.  Com.,  pp.  167,  169-171,  188,  189; 
1  Cruise  Dig.,  Tit.  I,  §§  33-35; 

Kirchwey,  Readings  on  the  Law  of  Real  Property,  pp.  457-469; 
Ante,  §  120. 


§  211.     Of  Abatement :  Intrusion:  Discontinuance:  Deforcement. 

Abatement,  intrusion,  discontinuance,  and  deforcement  are 
unlawful  entries  or  occupations  which  exclude  an  owner  who 
has  never  had  possession  of  the  lands.  Abatement  is  the  un- 
lawful entry  of  a  stranger  into  lands  held  in  fee  after  the  death 
of  the  true  owner,  and  before  the  entry  of  his  heir  or  devisee. 
Intrusion  is  the  unlawful  entry  of  a  stranger  into  lands  held  in 
remainder  or  reversion,  after  the  termination  of  the  particular 
estate  and  before  the  entry  of  the  remainderman  or  reversioner. 
Discontinuance  is  the  wrongful  occupation  of  lands  held  in  fee 
tail,  after  the  death  of  a  tenant  in  tail,  by  a  person  to  whom  said 
deceased  tenant  in  tail  had  unlawfully  granted  an  estate  for 
a  longer  period  than  his  own  life,  thereby  excluding  the  next 
heir  in  tail.  Deforcement  is  any  wrong  withholding  the  possession 
of  land,  from  the  person  entitled  thereto  by  virtue  of  an  estate 
of  freehold,  otherwise  than  by  disseisin,  abatement,  intrusion, 
or  discontinuance.  Instances  of  deforcement  are  the  refusal  of 
the  heir  to  allow  the  widow  to  take  possession  of  her  dower  lands ; 
of  a  grantor  to  deliver  the  granted  premises  to  the  grantee;  of 
a  tenant  upon  condition  subsequent  to  surrender  the  land  after 
the  forfeiture  of  his  estate  therein. 


Rem.  Abatement  and  intrusion  also  differ  from  discontinu- 
ance and  deforcement  in  that  abatement  and  intrusion  originate 
in  a  wrongful  entry,  while  in  the  others  the  entry  of  the  adverse 
holder  was  lawful.  For  this  reason,  the  owner  of  the  land  may 
enter  and  expel  an  abator  or  intruder;  but  in  cases  of  discon- 
tinuance or  deforcement,  as  the  prima  facie  right  is  in  the  occu- 
pant, the  true  owner  is  required  to  seek  his  remedy  in  an  action 
at  law. 

Read:  3  Bl.  Com.,  pp.  167-169,  171-174; 

1  Cruise  Dig.,  Tit.  I,  §§  31,  32;  Tit.  II,  ch.  ii,  §§  6-9. 


§§  212,  213     WRONGS  AGAINST  REAL  PROPERTY         241 

§  212.     Of  Ouster. 

Ouster  is  an  unlawful  entry  into  lands  occupied  by  the  tenant 
of  an  estate  less  than  freehold,  excluding  him  from  their  pos- 
session. Examples  of  this  wrong  occur  where  either  a  stranger 
or  the  landlord  unlawfully  ejects  a  tenant  for  years,  or  where 
creditors  arc  wrongfully  excluded  from  lands  which  have  been 
set  out  to  them  in  execution  to  be  held  until  their  revenues  pay 
the  debt. 

Rem.  Ouster  in  some  respects  resembles  disseisin,  and  is 
often  embraced  in  its  general  definition.  But  it  differs  from 
that  injury  not  only  in  its  legal  history,  but  because  the  wrong- 
doer need  not  claim  a  title  in  himself;  the  injured  party  need 
not  have  a  permanent  interest  in  the  land ;  the  ouster  works  no 
transfer  of  the  seisin ;  and  the  remedy  is  not  a  re-entry  but  an 
action  to  recover  the  possession  together  wnth  the  intermediate 
profits  of  the  land. 

Read:  3  Bl.  Com.,  pp.  198,  199. 

§  213.     Of  Trespass  Quare  Glausum  Fregit. 

Trespass  to  land  is  the  wrongful  entry  of  one  person  into 
land  which  is  in  the  lawful  possession  of  another,  without  claim- 
ing ownership  and  without  excluding  the  rightful  occupant. 
It  is  called  trespass  quarc  clausum  fregit  because  the  law  regards 
all  private  land  as  surrounded  by  a  suitable  enclosing  barrier, 
whether  or  not  such  barrier  in  fact  exists,  and  considers  that 
the  enclosure  is  broken  into  by  violence  whenever  any  one  un- 
lawfully enters  on  the  land.  From  such  an  entry,  however 
slight  and  transitory,  the  law  also  implies  damage,  and  pro- 
vides for  it  a  remedy.  Trespass  qxiare  clausum  may  be  com- 
mitted by  the  personal  entry  of  the  trespasser  himself,  or  by 
the  entry  of  his  servants  acting  under  his  orders,  or  by  that  of 
an  inanimate  object  projected  by  him  into  the  land,  or  by  that 
of  his  cattle  or  other  animals  when  it  results  from  his  act  or 
neglect.  It  can  be  committed  by  a  stranger  against  the  occu- 
pant, or  by  one  tenant  against  his  co-tenants,  or  by  a  landlord 
against  his  own  tenant.  But  it  can  be  committed  only  against 
a  person  who  is  in  actual  possession  of  the  land  or,  where  there 
is  no  actual  possession,  against  the  person  who  ha.s  the  right 
of  immetliate  possession. 

16 


242 


ELEMENTARY   LAW 


§214 


Rem.  Every  entry  into  the  land  of  another  is  unlawful  unless 
made  by  his  actual  or  implied  license,  or  in  pursuance  of  some 
legal  right  or  privilege.  An  actual  license  is  one  expressly  granted 
by  the  occupant  of  the  land,  and  justifies  any  entry  made  within 
its  provisions.  An  implied  license  arises  by  custom  or  by  neces- 
sity, —  as  to  save  property  from  destruction,  preserve  persons 
from  danger,  reclaim  property  accidentally  cast  upon  the  land, 
or  carry  on  the  ordinary  intercourse  of  social  or  commercial  life. 
An  entry  by  legal  right  or  privilege  is  one  made  in  pursuance  of 
official  duty,  or  in  the  exercise  of  a  right  not  dependent  on  the 
consent  of  the  possessor  of  the  land.  One  who  enters  by  legal 
right  or  privilege,  if  he  exceeds  or  abuses  his  right  while  on  the 
land,  becomes  a  trespasser  ab  initio,  and  forfeits  the  protection 
of  his  privilege;  but  one  who  abuses  an  express  or  impUed 
license  is  not  technically  a  trespasser  because  he  entered  by  the 
occupant's  consent,  though  he  is  guilty  of  an  actionable  wrong. 
Read:  3  BL  Com.,  pp.  208-215; 

Clark,  Elementary  Law,  §  118; 

Boone,  Real  Property,  §§  433-445; 

Addison  on  Torts,  §§  367-369; 

Cooley  on  Torts,  pp.  355-392 ; 

Pollock  on  Torts,  pp.  419-424,  426,  427,  447-455,  457-480; 

Jaggard  on  Torts,  §§211-217. 

§  214.    Of  Nuisances  to  Real  Property. 

A  nuisance  to  real  property  is  any  wrongful  action  or  omission, 
not  involving  an  unlawful  entry,  whereby  the  enjoyment  of 
the  property  by  its  owner  or  possessor  is  impaired.  Nuisances 
to  land  are  of  various  forms,  such  as  overhanging  buildings,  the 
discharge  of  drainage,  the  obstruction  of  watercourses,  the 
excavation  of  supporting  soil,  or  the  production  or  collection  of 
offensive  substances  on  adjoining  land.  The  unlawful  inter- 
ference, by  the  owner  of  the  servient  estate,  with  the  use  of  an 
incorporeal  hereditament  appurtenant  to  land  is  also  a  nuisance, 
since  it  tends  to  diminish  the  enjoyment  of  the  dominant  land. 
Every  continuance  of  a  nuisance  is  an  additional  wrong;  and 
any  person  omitting  to  remove  a  nuisance  over  which  he  has 
control,  though  he  did  not  create  it,  is  a  wrongdoer  and  is  re- 
sponsible for  the  injury  which  it  may  occasion. 

Rem.  Many  nuisances  to  land  are  also  nuisances  to  the 
person  by  whom  the  land  is  occupied,  and  likewise  may  be 
nuisances  to  persons  having  no  connection  with  the  land.  Thus 
an  accumulation  of  noxious  matter  may  be  a  nuisance  to  ad- 
joining land  impairing  its  rental  value  to  the  landlord;  a  nuisance 


§  215  WHONGS  AGAINST  REAL  PROPERTY  243 

to  the  tenant  prejudicing  his  health  and  diminishing  his  enjoy- 
ment of  his  possessory  estate;  and  a  nuisance  to  the  passer-by 
destroying  the  comfort  to  which  he  is  entitled  in  his  use  of  the 
highway.  Each  of  these  nuisances  is  actionable  in  itself,  although 
it  has  been  doubted  whether  a  nuisance  prejutUcing  both  property 
and  health  could  be  made  the  subject  of  an  action  at  law  on 
behalf  of  any  person  but  the  owner  of  the  land.  Modern  reme- 
dies, however,  seem  to  be  available  by  any  of  the  injured  parties, 
separately  from  the  others. 

Read:  3  Bl.  Com.,  pp.  216-219; 
Addison  on  Torts,  §§  370-418; 
Cooley  on  Torts,  pp.  670-749; 
Pollock  on  Torts,  pp.  484-531; 
Ja{?gard  on  Torts,  §§  2.32-245; 
2  Greenleaf,  Evidence,  §§  465-476; 
Boone,  Real  Property,  §§  425-432. 


'Of 

is  any  unlawful  act  or  omission  on  the  part  of  a  par- 
ticular tenant,  who  is  in  possession  of  the  land,  by  which  the 
estate  of  the  remainderman  or  reversioner  is  diminished  in 
value.  It  is  of  two  kinds:  (1)  Voluntary  Waste ;  and  (2)  Per- 
missive Waste.  Voluntary  waste  is  the  wilful  act  of  the  ten- 
ant, such  as  cutting  down  timber  trees,  destroying  or  altering 
buildings,  or  opening  new  mines  or  quarries.  Permissive  waste 
is  the  neglect  of  the  tenant  to  protect  the  property  from  decay, 
or  from  wrongful  injuries  at  the  hands  of  strangers.  Whether 
or  not  a  given  act  or  omission  is  waste  is  not  now  in  this  country 
defined  by  law,  but  by  the  current  local  standard  of  good  hus- 
bandry. Waste  can  he  committed  by  a  tenant  for  life  or  years 
against  the  owner  of  the  fee,  but  not  by  a  tenant  in  fee  simple 
against  his  heir,  nor  by  a  tenant  in  fee  tail  against  the  next 
donee,  —  each  of  these  latter  tenants  being  the  owners  of  the 
entire  inheritance.  Waste  has  always  been  regarded  by  the 
law  as  a  grievous  injury,  comprising  not  merely  damage  to 
property  but  a  breach  of  confidence  and  the  violation  of  a 
covenant;  and  hence  the  defaulting  tenant  may  be  sued  at 
law,  enjoined  in  equity,  deprived  of  the  possession  by  the  ap- 
pointment of  a  receiver,  and  formerly  altogether  forfeited  his 
estate. 

Rem.     Acts  and  omissions  of  a  stranger  which,  if  committed 
by  a  tenant,  would  be  waste  are  trespasses  or  nuisances  against 


244  ELEMENTARY   LAW  §  216 

the  tenant  though  they  also  injure  the  reversioner;  and  it  is 
the  duty  of  the  tenant  to  protect  the  land  against  them  and  to 
recompense  the  reversioner  for  the  loss  they  may  entail  upon 
him.  If  the  tenant  refuses  to  discharge  this  duty  the  reversioner 
may  sue  the  stranger  in  the  name  of  the  tenant  and  recover 
damages ;  and  where  the  injury  to  the  reversioner  is  separable 
from  that  inflicted  on  the  tenant  the  reversioner  may  seek  his 
remedy  in  a  distinct  action  against  the  wrongdoer  in  his  own 
name. 

Read:  2  Bl.  Com.,  pp.  281,  282; 

3  Bl.  Com.,  pp.  223-225; 

Clark,  Elementary  Law,  §  120; 

Kerr,  Real  Property,  §§  664-704; 

Pingrey,  Real  Property,  §§  323-339; 

Rice,  Real  Property,  §§  160-169; 

Boone,  Real  Property,  §§  113-120,  611-642; 

Tiffany,  Real  Property,  §§  246-257; 

Addison  on  Torts,  §§  425-434; 

Cooley  on  Torts,  pp.  392-396; 

Pollock  on  Torts,  pp.  427-431; 

Jaggard  on  Torts,  §§  218-223; 

2  Greenleaf,  Evidence,  §§  650-656. 

§  216.     Of  Disturbance. 

Disturbance  is  any  wrongful  act  of  one  person  by  which  another 
is  disturbed  in  the  lawful  enjoyment  of  an  incorporeal  heredita- 
ment. Thus  a  common  of  'pasture  is  disturbed  when  a  stranger 
pastures  his  cattle  in  the  common  field,  or  when  a  commoner 
puts  in  more  cattle  than  he  ought,  or  when  the  owner  of  the 
field  encloses  it  and  excludes  the  commoners  from  its  use.  A 
way  is  disturbed  whenever  passage  through  it  is  wrongfully 
and  wilfully  obstructed.  An  exclusive  franchise  is  disturbed  by 
the  inauguration  of  rival  enterprises  which  reduce  its  profits. 

Rem.  Where  the  owner  of  the  servient  estate  unlawfully 
hinders  the  enjoyment  of  an  incorporeal  hereditament  appurte- 
nant to  land,  the  wrong  is  at  the  same  time  a  disturbance  to  the 
incorporeal  right,  and  a  nuisance  to  the  dominant  land.  But 
the  two  injuries  are  inseparable  in  measurement  or  remedy,  and 
are  consequently  treated  as  a  single  nuisance. 

Read:  3  Bl.  Com.,  pp.  236-242; 
Clark,  Elementary  Law,  §  121; 
Jones,  Easements,  §§  872-891; 
Boone,  Real  Property,  §  148; 
Addison  on  Torts,  §§  568-572; 
Cooley  on  Torts,  pp.  413,  431-441; 
Pollock  on  Torts,  pp.  456,  457. 


§§217,218   WRONGS  AGAINST  PERSONAL  PROPERTY  245 


SECTION    II 

OF   PRIVATE    WRONGS   AGAINST    RIGHTS    IN    PERSONAL   PROPERTY 

§  217.     Of  Asportation  and  Detention. 

Asportation  is  the  unlawful  taking  of  a  chose  in  possession 
out  of  the  control  of  the  person  in  whom,  at  the  time  of  the 
taking,  the  right  of  possession  resides.  It  may  consist  either 
in  the  removal  and  destruction  of  the  chose,  or  in  its  removal 
without  its  destruction.  It  can  be  committed  against  any  one 
who  has  the  lawful  possession  of  the  chose;  and  by  any  one, 
even  its  true  owner,  who  has  not  the  right  to  its  immediate 
possession.  As  this  wrong  always  involves  force,  or  a  fraud 
which  is  e(|uivalent  to  force,  it  is  a  true  trespass,  and  is  often 
called  trespass  de  bonis  asporiatis.  Detention  is  the  unlawful 
withholding  of  a  chose  in  possession  from  the  control  of  the 
person  who  is  entitled  to  its  immediate  j)ossession.  It  may  be 
perpetrated  by  force  or  fraud  or  simple  negligence;  and  may 
be  committed  by  any  person,  even  by  the  owner  of  the  chose, 
and  against  any  person  who  has,  at  the  time,  the  right  to  its 
possession. 

Rem.  Every  asportation  includes  a  detention,  more  or  less 
prolonged ;  but  a  detention  may  exist  where  the  original  taking 
was  lawful  or  witii  the  consent  of  the  owner,  as  where  a  bailee 
wrongfully  retains  an  article  after  the  purpose  of  the  bailment 
is  accomplished.  Where  a  detention  originates  in  a  lawful 
talcing  it  is  often  necessary,  in  order  to  render  the  retention  un- 
lawful, and  to  fix  the  liability  of  the  retainer,  for  the  person  en- 
titled to  the  possession  of  the  chose  to  make  demand  for  it  upon 
the  retainer,  and  in  such  cases  no  action  will  lie  for  its  recovery 
or  for  damages  until  the  demand  has  been  made,  and  the  return 
has  been  expressly  or  tacitly  refused. 

Read:  3  Rl.  Com.,  pp.  144-151; 
Addison  on  Torts,  §  518; 
Cooley  on  Torts,  pp.  510-516. 

§  218.     Of  Damage  to  Choses  in  Possession. 

Damage  to  choses  in  possession  consists  in  any  unlawful 
action  or  omission  whereby  the  choses  in  possession  of  another 
are  rendered  less  valuable  in  themselves,  or  less  useful  to  their 


246  ELEMENTARY  LAW  §  219 

owner  or  possessor.  It  may  extend  to  the  entire  destruction 
of  the  chose,  or  may  diminish  to  any  degree  its  quantity  or 
quahty.  It  may  he  committed  by  any  person  against  the  rights 
of  the  owner  or  possessor  of  the  chose,  and  the  owner  or  pos- 
sessor can  commit  it  against  the  rights  of  one  another. 

Rem.  The  wrongs  which  destroy  or  decrease  the  value  of  a 
chose  in  possession,  without  disturbing  the  possession,  are  of  two 
classes:  (1)  Those  in  which  the  destruction  or  decrease  in  value 
results  directly  from  the  wrongful  act  of  another;  (2)  Those 
in  which  such  destruction  or  decrease  results  indirectly  and 
consequentially  from  the  wrongful  act  or  omission  of  another. 
To  the  former  class  belong  all  injuries  arising  from  the  wrong- 
ful application  of  any  degree  of  force  to  the  object  injured.  These 
are  in  their  legal  nature  trespasses,  and  are  redressed  in  an  action 
of  trespass  by  the  courts  of  law.  To  the  second  class  belong  all 
injuries  resulting  from  negligence,  or  fraud,  or  from  secondary 
causes  which  have  been  set  in  operation  by  a  force  which  was 
wrongfully  exercised  but  was  not  applied  directly  to  the  injured 
object,  or  from  malicious  slanders  of  the  title  or  value  of  the 
property.  These  are  not  true  trespasses  because  they  lack  the 
element  of  violent  injury  at  the  hands  of  the  wrongdoer,  but 
they  resemble  trespasses  in  their  consequences  and  are,  there- 
fore, remedied  in  an  action  of  trespass  on  the  case.  The  particu- 
lar wrongs  embraced  in  these  two  classes  are  almost  without 
number,  and  generally  have  no  specific  names. 

Read:  3  Bl.  Com.,  p.  153; 

Clark,  Elementary  Law,  §  122; 

Addison  on  Torts,  §§  260,  261,  573-614,  794-817; 

Cooley  on  Torts,  pp.  260,  413-431,  442-497,  554-594,  791-837; 

Pollock  on  Torts,  pp.  22-57,  348-392,  532-643; 

Jaggard  on  Torts,  §§  182-194,  246-278. 


§^19.     Of  Conversion. 

Conversion  is  the  unlawful  usurpation  by  one  person  of 
dominion  over  the  choses  in  possession  of  another.  An  wn- 
lawful  usurfotion  of  dominion  over  the  choses  of  another  in- 
cludes an  external  action  or  omission,  and  an  internal  purpose 
or  intent.  The  external  action  or  omission  may  be  an  asporta- 
tion or  detention  of  the  chose,  or  some  damage  inflicted  upon 
it.  The  internal  purpose  is  the  intention  of  the  wrongdoer  either 
to  deprive  the  owner  or  rightful  possessor  of  the  enjoyment  of 
the  chose,  or  to  procure  for  himself  or  for  a  stranger  some  bene- 


§  220      WRONGS  AGAINST  PERSONAL  PROPERTY  247 

fit  from  its  temporary  control.  The  presence  of  this  intent 
gives  to  the  external  act  a  different  legal  character,  and  en- 
titles the  injured  party  to  seek  his  redress  in  an  action  of  trover 
and  conversion.  Any  person  may  be  guilty  of  this  wrong  as 
against  the  rightful  owner  or  possessor ;  the  possessor  may 
commit  it  against  the  owner  by  abusing  or  exceeding  his  own 
possessory  rights;  the  owner  may  commit  it  against  the  law- 
ful possessors  by  interfering  for  his  own  advantage  with  their 
possessory  rights.  Where  a  conversion  consists  in  the  wrongjul 
sale  of  goods  belonging  to  another,  and  the  receipt  of  the  price 
by  the  converter,  the  owner  of  the  chose  may  waive  the  wrong, 
treat  the  converter  as  his  agent  in  the  sale,  and  on  the  quasi- 
contract  thus  arising  may  recover  from  him  the  entire  price 
received. 

Rem.  An  asportation,  detention,  or  damage  may  be  com- 
plete without  any  internal  purpose,  and  may  be  the  foundation 
of  an  action  of  trespass  or  trespass  on  the  case  according  as  the 
injury  is  direct  or  consequential.  But  in  an  action  of  trover  and 
conversion  the  internal  purpose  must  be  proved,  and  if  it  is  not 
apparent  from  the  character  of  the  external  act,  —  as  it  may  not 
be  in  cases  of  detention,  —  a  demand  must  be  made  upon  the 
wrongdoer  for  the  return  of  the  chose  to  the  owner  or  possessor 
before  the  suit  is  brought ;  and  if  this  demand  is  met  with 
an  unequivocal  refusal,  or  an  unexplamed  neglect  of  the  wrong- 
doer to  return  the  chose,  the  internal  purpose  to  convert  the 
chose  is  sufficiently  demonstrated.  But  if  the  refusal  is  upon 
reasonable  conditions  in  reference  to  proof  of  ownership,  pay- 
ment of  expenses,  and  the  like,  the  refusal  is  not  unequivocal, 
and  the  demand  must  be  repeated  after  the  conditions  are 
fulfilled. 

Read:  .3  Bl.  Com.,  p.  152; 

Clark,  Elementary  Law,  §  119; 

Addison  on  Torts,  §§  519-544; 

Cooley  on  Torts,  pp.  51G-537; 

Pollock  on  Torts,  pp.  432-447; 

Jaggard  on  Torts,  §§  224-23L 

§  220.     Of  Breach  of  Contract 

A  breach  of  contract  is  any  action  or  omission  of  one  party  to 
a  contract  or  quasi-contract  by  which  the  other  party  is  hin- 
dered or  disturbed  in  the  enjoyment  of  some  property  or  privi- 
lege, to  which  by  virtue  of  the  contract  he  has  become  entitled 


248 


ELEMENTARY   LAW 


§221 


Any  express  contract  is  broken  by  the  failure  of  either  party  to 
do  or  to  refrain  from  doing  the  thing  which  he  agreed  to  do,  or 
not  to  do,  in  the  manner,  time,  and  place  in  which  it  was  agreed 
to  be  done  or  not  done.  A  quasi-contract  or  implied  contract 
is  broken  by  the  failure  of  either  party  to  fulfil  the  obligation 
which,  by  reason  of  the  circumstances,  the  law  has  imposed  upon 
him.  Such  failure  is  in  itself,  in  the  eye  of  the  law,  a  wrong- 
ful act  or  omission,  unless  excused  or  justified  by  the  conduct 
of  the  other  party,  or  by  the  act  of  God  or  of  the  public  enemy, 
or  by  the  occurrence,  without  the  fault  of  the  contracting  party, 
of  events  by  which  the  performance  of  the  contract  is  rendered 
inherently  or  legally  impossible.  From  such  failure  the  law 
always  implies  damage,  even  though  the  breach  of  contract 
actually  results  in  benefit  to  the  promisee. 

Rem.  Every  contract  and  quasi-contract  creates  a  chose  in 
action,  whether  the  contract  be  to  render  services,  forbear  a 
right,  or  transfer  property ;  and  when  the  property  is  transferred, 
the  right  forborne,  or  the  services  rendered,  the  chose  created 
by  the  contract  becomes  a  chose  in  possession  and  is  as  fully 
possessed  and  enjoyed  by  its  owner  as  in  the  nature  of  things 
it  can  ever  be.  The  non-fulfilment  or  breach  of  a  contract  is, 
therefore,  the  wrongful  retention  in  action  of  a  chose  which 
should  be  vested  in  possession,  and  thus  contains  all  the  elements 
of  a  private  wrong.  Choses  in  action,  other  than  contract  rights 
and  obligations,  are  usually  choses  in  possession  in  the  hands  of 
the  person  by  whom  they  are  withheld  from  the  owner  or  right- 
ful possessor,  and  consequently  are  subject  like  other  choses 
in  possession  to  asportation,  detention,  damage,  and  conversion. 

Read:  3  Bl.  Com.,  pp.  153-166; 

Cooley  on  Torts,  pp.  334-354,  595-621,  750-790; 
Pollock  on  Torts,  pp.  644-687; 
Jaggard  on  Torts,  §§  293-298. 


§  221.     Of  Malicious  Interference  with  Contract. 

Malicious  interference  with  contract  is  the  wrongful  act  of 
a  stranger  to  the  contract,  preventing  one  of  the  proposed  parties 
from  entering  into  the  contract,  or  procuring  one  of  the  existing 
parties  to  disregard  its  obligations.  The  interference  may  be 
by  force,  fraud,  or  persuasion,  and  may  relate  to  any  species 
of  contract,  whether  concerning  services  or  property.  But 
it  must  he  malicious  and  wanton ;    not  in  the  usual  course  of 


§  221       WRONGS  AGAINST  PERSONAL  PROPERTY  249 

competition,  nor  in  the  exercise  of  rights  growing  out  of  con- 
fidential relations  between  the  stranger  and  the  party  whose 
conduct  he  affects.  Common  examples  of  this  wrong  occur 
in  the  enticing  away  of  workmen  in  order  to  embarrass  their 
employer,  and  in  the  deterring  of  customers  from  trading  with 
a  merchant  for  the  purpose  of  compelling  him  to  yield  to  un- 
warrantable demands. 

Rem.  According  to  many  modern  decisions  a  malicious  inter- 
ference with  contract  is  also  a  wrong  against  personal  liberty, 
although  its  disastrous  consequences  fall  especially  upon  present 
or  prospective  rights  of  property. 

Read:  Andrews,  American  Law,  §§  678-681; 
Clark,  Elementary  Law,  §§  115,  117; 
Cooley  on  Torts,  pp.  32.5-333; 
Pollock  on  Torts,  pp.  401-411 ; 
Jaggard  on  Torts,  §§  204-207. 


250  ELEMENTARY  LAW  §  222 

k 

CHAPTER   III 

OF    PEIVATE    WRONGS    AGAINST    FAMILY    RIGHTS 

§  222.     Of  the  Nature  and  Classes  of  Wrongs  against  Family 
Rights. 

A  wrong  against  family  rights  is  an  unlawful  act  or  omission 
of  any  person,  whether  within  or  outside  of  the  family  relation, 
whereby  any  party  to  such  relation  is  deprived  of  the  full  en- 
joyment of  those  powers  and  privileges  which  the  relationship 
legally  confers  upon  him.  Classifying  wrongs  against  family 
rights  according  to  the  relations  whose  privileges  they  invade 
they  are  the  following:  (1)  Wrongs  against  the  relation  of 
husband  and  wife;  (2)  Wrongs  against  the  relation  of  parent 
and  child;  (3)  Wrongs  against  the  relation  of  guardian  and 
ward;  (4)  Wrongs  against  the  relation  of  master  and  servant; 
(5)  Wrongs  against  the  relation  of  a  family  head  and  his  depend- 
ants. Wrongs  against  those  rights  of  the  parties  to  a  relation 
which  subsist  in  them  as  individuals,  independently  of  the  rela- 
tion, are  wrongs  against  personal  and  property  rights  like  those 
which  have  already  been  considered. 

Rem.  During  the  period  when  the  family  was  regarded  as  the 
social  unit,  and  the  father  as  its  ruler  and  representative,  the 
rights  of  its  members  as  between  themselves  were  not  recognized 
by  law  as  reciuiring  its  protection ;  and  the  sole  wrongs  which 
it  endeavored  to  redress  were  those  committed  by  third  parties 
against  the  rights  of  the  family  head  in  his  dependants.  Modern 
social  theories  have,  however,  compelled  the  law  to  abandon  this 
position,  and  to  treat  the  reciprocal  rights  of  members  of  the 
family  as  subject  to  legal  wrongs  and  entitled  to  legal  vindica- 
tion, and  to  award  to  inferiors  in  the  relation  compensation  for 
the  loss  they  may  sustain  from  injuries  inflicted  by  third  parties 
upon  their  superiors.  Not  yet,  indeed,  has  the  law  of  wrongs  and 
remedies  taken  possession  of  the  whole  field  of  family  rights,  and 
given  to  the  inferior  the  same  measure  of  relief  which  the  superior 
has  always  been  able  to  obtain ;  but  it  is  steadily  developing  and 


§  223  WRONGS  AGAINST  FAMILY  RIGHTS  251 

tends  to  place  all  members  of  the  family  on  an  equality  as  against 
third  parties,  and  also  to  afford  them  adecjuate  redress  for  the 
wrongs  committed  against  them  by  one  another. 

Read:  3  Bl.  Com.,  pp.  138,  142; 
Clark,  Elementary  Law,  §  108; 
Cooley  on  Torts,  p.  261 ; 
Pollock  on  Torts,  pp.  269-285; 
Jaggard  on  Torts,  §  154. 


SECTION  I 

OF  PRIVATE  WRONGS  AGAINST  THE  RELATION  OF  HUSBAND 
AND    WIFE 

§  223.     Of  the  Violation  of  the  Rights  of  a  Husband  in  and  to  his 
Wife. 

The  rights  of  a  husband  in  and  to  his  wife  may  be  \nolated 
in  four  ways:  (1)  By  her  abduction;  (2)  By  alienating  her 
affection  from  her  husband ;  (3)  By  criminal  conversation ; 
(4)  By  physical  injury  to  her  person.  The  abduction  of  a  wije 
is  the  unlawful  taking  or  detention  of  a  married  woman  from  the 
possession  and  custody  of  her  husband.  This  wrong  may  be 
committed  by  taking  away  or  detaining  the  wife  by  force  or 
fraud;  or  by  persuading  her  to  abandon  her  husband;  or  by 
encouraging  her  to  remain  away  from  him  by  affording  her 
shelter  and  support.  The  alienation  of  the  affection  of  a  wife 
consists  of  any  conduct  on  the  part  of  persons  other  than  the 
husband,  which  is  intended  to  and  does  diminish  her  confidence 
in  and  affection  for  him ;  and  is  thus  calculated  to  endanger  the 
stability  of  the  marital  relation,  and  defeat  the  purposes  for 
which  it  was  established.  This  wrong  may  be  committed  by 
female  friends  or  even  by  the  parents  of  the  wife,  and  by  any 
words  or  actions  which  may  influence  her  feelings  and  turn 
them  against  her  husband.  Criminal  conversation  is  the  sexual 
knowledge  of  a  married  woman  to  the  damage  of  her  husband. 
This  injury  is  complete  even  if  the  wife  voluntarily  concur  in 
the  sexual  act,  since  she  has  no  legal  control  over  her  person, 
and  therefore  no  power  to  consent  to  its  violation ;  but  if  the 
husband  acquiesces  in  the  intercourse  by  suffering  his  wife  to 
live  as  a  prostitute,  or  if  their  domestic  companionship  has 
been  permanently  and  unconditionally  severed  before  the  inter 


252  ELEMENTARY  LAW  §  224 

course  by  their  mutual  agreement  or  the  action  of  the  courts, 
he  sustains  no  wrong.  The  ^physical  injury  of  a  wife  consists 
in  the  infliction  upon  her  of  afiy  bodily  harm,  whereby  her 
ability  to  render  service  to  her  husband  is  impaired.  This 
wrong  may  be  committed  by  violence  or  by  negligence;  or 
by  aiding  her  in  perpetrating  injuries  to  herself,  —  as  by  fur- 
nishing her  with  noxious  drugs ;  and  though  for  the  time  being 
she  is  separated  from  her  husband,  if  its  consequences  continue 
after  her  return. 

Rem.  A  husband  has  a  right  to  the  presence  and  assistance  of 
his  wife  in  his  household,  and  any  wrongful  interference  with  the 
enjoyment  of  this  right  by  third  persons,  whether  by  removing  the 
wife  from  the  household  or  by  impairing  her  ability  to  render 
him  the  customary  assistance  within  it,  is  an  injury  to  him  for 
which  he  may  recover  damages.  A  husband  also  has  a  right  to 
the  mental  companionship  of  his  wife,  to  her  affection  for  himself 
and  to  her  active  interest  in  all  that  concerns  the  welfare  of  his 
family ;  and  any  wilful  and  malicious  diversion  of  her  interests 
and  affections  to  other  objects,  by  third  persons,  is  an  actionable 
wrong.  It  is  not  essential  to  this  injury  that  the  wife  should  have 
been  led  to  violate  her  marriage  vows,  or  to  desert  her  husband's 
household,  or  to  bestow  her  affections  upon  another  man;  the 
wrong  against  the  husband  is  complete  when  the  malicious  inter- 
ference of  third  persons  has  deprived  him  of  the  loyal  and  exclu- 
sive devotion  of  his  lawful  wife.  But  if  through  his  misconduct 
toward  her  he  has  given  her  a  sufficient  legal  ground  to  desert 
him,  other  persons  may  afford  her  shelter  and  protection,  provided 
this  is  done  in  good  faith  and  not  from  malice  toward  the  hus- 
band, although  the  result  should  be  to  wean  her  entirely  from 
his  household  and  companionship. 

Read:  3  Bl.  Com.,  pp.  139,  140; 

Clark,  Elementary  Law,  §  153; 
Addison  on  Torts,  §§  635-639; 
Cooley  on  Torts,  pp.  261-268; 
Jaggard  on  Torts,  §§  161-164  a. 


§  224.     Of  the  Violation  of  the  Rights  of  a  Wife  in  and  to  her 
Husband. 

The  rights  of  a  loije  in  and  to  her  husband  may  be  violated  in 
two  ways:  (1)  By  the  alienation  of  the  affections  of  the  hus- 
band; (2)  By  the  physical  injury  of  the  husband.  The  aliena- 
tion of  the  ajjections  of  a  husband  from  his  wife  consists  in  any 


§  224  WRONGS  AGAINST  FAMILY  RIGHTS  253 

wdlful  and  successful  attempts,  on  the  part  of  third  persons,  to 
diminish  the  respect  and  devotion  wliich  the  husband  does 
and  ought  to  entertain  for  a  loyal  wife.  This  wrong  may  be 
committed  by  malicious  slander  of  the  wife  to  the  husband ;  by 
seducing  him  into  a  transfer  of  his  affections  to  another  woman; 
by  promising  him  pecuniary  benefits  in  consideration  of  his 
abandonment  of  her;  or  by  any  other  conduct  intended  to  de- 
prive and  actually  depriving  her  of  that  supreme  dominion 
in  his  heart  to  which  she  is  both  naturally  and  legally  entitled. 
The  'physical  injury  of  a  husband  consists  in  the  unlawful  inflic- 
tion of  such  bodily  harm  upon  the  husband  as  dejirives  him  of 
the  power  to  afford  her  the  protection  and  support  which  the  law 
recognizes  as  her  due.  This  wrong  may  be  committed  by  vio- 
lence or  negligence,  or  by  aiding  the  husband  in  perpetrating 
acts  injurious  to  himself. 

Rem.  As  has  already  been  remarked  the  rights  of  a  wife  in  and 
to  her  husband  are  still  of  imperfect  definition,  and  correspond- 
ingly this  field  of  legal  wrong  is  limited.  The  courts,  however, 
recognize  that  wives  can  sutler  some  injuries  which  denuind  re- 
dress, and  among  these  that  the  malicious  alienation  of  a  hus- 
band's affection  from  his  wife  is  a  wrong  of  the  same  character 
and  enormity  as  the  aUenation  of  a  wife's  affections  from  her 
husband.  They  do  not  as  yet  concede  that  a  wife  has  a  right 
to  her  husband's  chastity,  nor  afford  her  a  remedy  against  another 
woman  with  whom  her  husband  has  had  sexual  intercourse  unless 
it  is  accompanied  by  a  withdrawal  of  his  affection  from  herself, 
although  such  intercourse  is  a  sufficient  reason  for  divorce.  Nor 
do  the  courts  regard  the  physical  injury  of  the  husband  as  a 
wrong  against  the  wife  to  the  same  extent  to  which  they  recognize 
the  physical  injury  of  the  wife  as  a  wrong  against  the  husband. 
At  present,  indeed,  this  recognition  seems  to  be  confined  to  two 
cases:  (1)  Where  the  death  of  a  husband  is  caused  by  unlawful 
violence  or  negligence;  (2)  Where  unlawful  practices  of  another 
person,  such  as  the  sale  of  intoxicating  licjuors,  have  resulted  in 
the  disability  of  the  husband  to  provide  for  the  support  of  his 
wife.  In  these  two  instances,  under  the  local  statutes  of  many 
of  our  States,  the  wife  can  recover  damages  proportionate  to  the 
pecuniary  loss  she  has  sustained. 

Read:  3  Bl.  Com.,  p.  143; 
4  Bl.  Com.,  pp.  312-317; 
Clark,  IClementary  Law,  §  153; 
Jaggard  on  Torts,  §  163. 


254  ELEMENTARY  LAW  §  225 

k 

SECTION  II 

OF   PRIVATE   WRONGS   AGAINST   THE   RELATION   OF   PARENT 
AND    CHILD 

§  226.     Of  the  Violation  of  the  Rights  of  a  Parent  in  and  to  his 
Child. 

The  wrongs  by  which  the  rights  of  a  parent  in  and  to  his 
child  are  violated  are  three:  (1)  The  abduction  of  the  child; 
(2)  The  physical  injury  of  the  child :  (3)  The  seduction  of  the 
child.  The  abduction  of  a  child  is  the  unlawful  taking  or  deten- 
tion of  the  child  from  the  custody  and  control  of  its  parent,  or 
of  some  other  person  who  stands  to  it  in  loco  parentis.  The 
taking  or  detention  is  unlawful  unless  done  in  obedience  to  legal 
process,  or  in  the  necessary  shelter  and  protection  of  the  child, 
or  after  a  voluntary  relinquishment  by  the  parent  of  his  right 
to  its  control.  This  wrong  may  be  committed  by  force  or  fraud 
or  persuasion,  or  by  harboring  a  fugitive  child  with  intent  to 
encourage  it  in  its  disobedience.  The  physical  injury  of  a  child 
consists  in  any  unlawful  action  or  omission  of  a  third  person 
which  inflicts  bodily  harm  upon  the  child,  and  thereby  causes 
to  the  parent  either  the  loss  of  the  services  of  the  child  or  trouble 
and  expense  in  its  cure.  The  seduction  of  a  child  is  the  procure- 
ment of  the  carnal  knowledge  of  the  unmarried  daughter  of 
another,  to  the  damage  of  the  parent.  The  carnal  knowledge 
may  be  procured  by  force  or  fraud  or  flattery  or  persuasion, 
and  may  be  either  with  or  without  the  daughter's  consent.  The 
unmarried  daughter  may  be  either  a  minor  or  an  adult. 

Rem.  The  legal  injury  inflicted  on  the  parent  by  the  foregoing 
wrongs  is  either  the  loss  of  the  services  of  the  child  or  the  addi- 
tional burden  imposed  upon  him  in  its  care  and  support.  In  cases 
of  abduction  this  loss  is  measured  by  the  value  of  the  services  of 
which  the  parent  is  deprived,  and  the  expense  entailed  upon  him 
in  recovering  the  child;  and  in  some  instances  by  the  mental 
suffering  which  its  absence  has  caused  him.  In  cases  of  physical 
injury  to  the  child  the  measure  of  damages  is  the  same  as  in  cases 
of  abduction,  though  where  the  injury  results  in  the  death  of  the 
child  the  local  statutes  of  some  States  prescribe  a  definite  amount 
of  compensation.    In  cases  of  seduction  no  loss  of  service  to  the 


I 


§  226  WRONGS  AGAINST  FAMILY  RIGHTS  255 

parent  is  presumed,  but  evidence  of  any  actual  service  is  suffi- 
cient to  support  the  parent's  claim  for  damages,  which  may  be  of 
greater  or  less  amount  at  the  discretion  of  the  jury.  A  parent  who 
connives  at  the  seduction  of  his  daughter  suffers  no  legal  wrong ; 
and  if  he  is  himself  a  person  of  evil  life  and  corrupt  example,  or 
the  character  of  the  daughter  for  chastity  is  bad,  the  defendant 
may  offer  evidence  thereof  either  to  show  such  connivance  or  to 
mitigate  the  damages. 

Read:  3  Bl.  Com.,  pp.  140,  141; 

Dwight,  Law  of  Persons  and  Property,  pp.  250-254; 

Andrews,  American  Law,  §  512; 

Clark,  Elementary  Law,  §§  109,  163; 

Addison  on  Torts,  §§  640-647; 

Cooley  on  Torts,  pp.  268-277; 

Jaggard  on  Torts,  §§  156-160; 

2  Greenleaf,  Evidence,  §§  571-579. 


§  226.     Of  the  Wrongs  which  Violate  the  Rights  of  a  Child  in  and 
to  its  Parent. 

The  principal  wrong,  by  which  the  rights  of  a  child  in  and  to 
its  parent  are  violated,  is  the  phij.s-ical  injury  of  the  parent, 
whereby  his  ability  to  protect  and  support  the  child  are  actually 
impaired,  to  the  loss  and  damage  of  the  child.  The  right  to 
bring  an  action  to  recover  damages  for  such  injuries  at  present 
rests  entirely  upon  local  statutes,  though  the  principle  which 
underlies  it  is  contained  in  the  law  of  nature,  and  received  prac- 
tical recognition  in  the  customs  of  the  common  law. 

Rem.  The  ancient  weregild,  paid  by  a  homicide  to  the  family 
of  his  victim,  which  in  one  form  or  another  kept  its  place  in  Eng- 
lish law  until  after  the  separation  of  this  country  from  Great 
Britain,  expresses  the  same  principle  which  is  embodied  in  these 
modern  statutes. 

Read:  3  Bl.  Com.,  p.  143; 
4  Bl.  Com.,  pp.  313,  314; 
Addison  on  Torts,  §§  648-651. 


256  ELEMENTARY   LAW  §  227 


SECTION  III 

OF    PRIVATE    WRONGS    AGAINST    THE    RELATION    OF    GUARDIAN 

AND   WARD 

§  227.     Of   Wrongs  which  Violate   the   Reciprocal  Rights   of  a 
Guardian  of  the  Person  and  his  Ward. 

A  guardian  of  the  -person  stands  to  his  ward  to  some  extent 
in  loco  parentis,  and  to  that  extent  possesses  rights  in  the  ward 
which  the  law  recognizes  and  protects.  These  rights,  Hke  those 
of  the  parent  in  the  child,  are  violated :  (1)  By  the  abduction 
of  the  ward;  (2)  By  the  physical  injury  of  the  ward;  (3)  By 
the  seduction  of  the  ward.  Such  rights  and  wrongs,  however, 
are  not  necessarily  of  the  same  scope  as  those  involved  in  the 
relation  of  parent  and  child.  Thus  the  abduction  of  a  ward  is 
an  injury  to  the  guardian  only  when  he  is  entitled  to  the  custody 
of  the  child :  the  physical  injurij  of  a  ward  is  not  a  wrong  against 
the  guardian  unless  the  guardian  is  compelled  at  his  own  cost 
to  employ  methods  for  its  cure ;  the  seduction  of  a  ward  affects 
the  guardian,  not  through  her  loss  of  chastity  but  on  account 
of  some  actual  privation  which  he  suffers  or  some  expense  which 
he  incurs.  The  physical  injtiry  of  a  guardian  of  the  person 
gives  the  ward  no  right  of  action,  unless  it  was  dependent  on 
the  guardian  for  support  by  virtue  of  some  other  relation  than 
that  of  guardian  and  ward. 

Rem.  A  guardian  of  the  person,  as  such,  is  not  entitled  to  the 
services  of  his  ward,  and  therefore  does  not  sustain  an  injury 
through  the  loss  of  its  services  alone.  But  the  more  nearly  his 
actual  relations  to  the  ward  approach  those  of  a  parent,  and  im- 
pose upon  him  obligations  to  protect  and  support  the  ward,  the 
more  extensive  are  his  remedies  against  third  persons  for  their 
unlawful  interference  with  his  rights. 

Read:  3  Bl.  Com.,  p.  141; 

Cooley  on  Torts,  pp.  277-280. 


§§228,229       WRONGS  AGAINST  FAMILY  RIGHTS  257 

§  228.     Of  the  Wrongs  which  Violate  the  Reciprocal  Rights  of  a 
Guardian  of  the  Estate  and  his  Ward. 

The  rights  of  the  guardian  of  the  estate  of  a  ward  are  violated 
by  any  wrongful  interference  of  third  parties  with  the  estate 
while  under  his  control.  Out  of  the  income  of  the  estate  he 
must  support  and  educate  the  ward;  and  he  must  so  manage 
the  principal  as  to  make  it  produce  a  present  income,  and  also 
to  preserve  it  for  the  benefit  of  the  ward  at  its  majority.  What- 
ever wrongful  acts  prevent  him  from  the  proper  discharge  of  these 
duties  are  injuries  both  to  the  ward  and  to  himself,  and  entitle 
him  to  maintain  any  necessary  form  of  action,  either  at  law  or 
equity,  for  protection  and  redress. 

Rem.  Wrongs  against  the  estate  of  a  ward  in  the  hands  of  its 
guardian  are  injuries  not  only  to  the  property  rights  of  the  guar- 
dian, but  to  his  family  rights  also,  since  they  interfere  with  the 
discharge  of  the  duty  of  the  guanUan  to  use  the  property  for  the 
benefit  of  the  ward  during  the  continuance  of  the  guardianship. 
Such  wrongs  therefore  inflict  a  twofold  injury  upon  the  guardian, 
and  a  further  injury  upon  the  ward,  for  which  the  guardian  may 
sue  alone  in  his  own  name  as  guardian,  or  in  the  ward's  name 
jointly  with  his  own. 

Read:  2  Kent  Com.,  Lect.  xxx,  pp.  228-230. 


SECTION  IV 

OF   PRIVATE   WRONGS    AGAINST   THE    RELATION   OF   MASTER    AND 

SERVANT 

§  229.     Of  the  Violation  of  the  Rights  of  a  Master  in  and  to  his 
Servant. 

The  rights  of  a  master  in  and  to  his  servant  may  be  violated 
in  four  ways:  (1)  By  the  abduction  of  the  servant ;  (2)  By  the 
retainer  of  the  servant;  (3)  By  the  physical  injury  of  the  ser- 
vant; (4)  By  the  seduction  of  the  servant.  The  abduction  of  a 
servant  consists  in  the  unlawful  taking  or  detention  of  a  known 
servant  from  his  master  during  the  period  of  service.  This 
wrong  may  be  committed  by  force  or  fraud  or  persuasion,  or 
by  harboring  a  fugitive  servant  with  intent  to  encourage  him  in 
withholding   his   service   from    his    master.      The   retainer   of  a 

17 


258  ELEMENTARY  LAW  §  230 

servant  consists  in  the  hiring  of  the  known  servant  of  another 
into  the  service  of  the  retainer,  before  his  term  of  service  with 
the  former  master  has  expired;  or  in  refusing  to  restore  to  the 
master  on  demand  a  servant  who  has  been  innocently  hired. 
The  'physical  injury  of  a  servant  is  the  wrongful  infliction  upon 
him  of  any  bodily  harm  which  deprives  the  master  of  his  ser- 
vices, or  diminishes  their  value.  The  seduction  of  a  servant  is 
the  procurement  of  the  carnal  knowledge  of  an  unmarried  fe- 
male servant  to  the  damage  of  the  master.  The  essence  of  this 
injury  is  the  loss  of  service  to  the  master,  caused  by  the  physical 
or  mental  incapacity  which  results  from  the  seduction.  The 
mode  by  which  the  injury  is  perpetrated  is  immaterial  so  far 
as  the  master  is  concerned,  as  also  are  the  violation  of  her  chastity 
and  the  disgrace  and  sorrow  falling  upon  her  and  her  family. 

Rem.  As  a  general  rule  the  four  wrongs  above  described  re- 
late only  to  servants  who  belong  to  the  classes  of  apprentices  and 
menials,  and  who  are  therefore  members  of  the  master's  family. 
To  take  or  entice  away  an  employee,  who  is  bound  to  the  employer 
only  by  an  agreement  to  serve  him,  is  one  form  of  the  wrong 
known  as  a  malicious  interference  with  contract.  Whether  the 
physical  injury  of  a  mere  employee  is  such  a  wrong  against  the 
employer  as  to  give  him  a  right  of  action  against  the  wrongdoer 
has  been  doubted ;  but  has  been  affirmed  in  cases  where  the  dam- 
age to  the  employer  was  immediate  and  irreparable.  In  ordinary 
cases  the  remedy  of  the  employer  is  against  the  employee  for 
his  breach  of  contract,  leaving  the  employee  to  recover  from 
the  wrongdoer  damages  for  his  personal  injury,  including  the 
amount  which  his  employer  has  recovered  against  him.  For  the 
seduction  of  a  female  employee  the  employer  has  no  remedy 
except  against  the  employee  for  her  breach  of  contract,  should 
a  breach  occur. 

Read:  3  Bl.  Com.,  pp.  141,  142; 
Addison  on  Torts,  §§  616-633; 
Cooley  on  Torts,  pp.  282,  283; 
Jaggard  on  Torts,  §§  155,  279-292. 

§  230.     Of  the  Wrongs  which  Violate  the  Rights  of  a  Servant  in 
and  to  his  Master. 

The  rights  of  an  apprentice  or  a  menial  in  and  to  his  master 
are  as  definite  and  valuable  as  are  those  of  the  master  in  and  to 
the  servant,  and  the  wrongs  by  which  they  can  be  violated  may 


§  231  WRONGS  AGAINST  FAMILY  RIGHTS  259 

be  as  disastrous  to  the  injured  party.  To  disable  a  master  so 
that  he  can  no  longer  give  instruction  or  employment  to  the 
servant ;  to  prejudice  his  mind  against  the  servant  thereby  lead- 
ing him  to  neglect  or  ill-treat  the  servant;  to  obstruct  his  busi- 
ness enterprises  and  compel  him  to  discharge  his  servants,  — 
are  examples  of  the  injuries  which  a  servant  may  suffer  through 
the  unwarrantable  conduct  of  third  persons  toward  his  master. 
Hitherto,  however,  the  courts  have  taken  little  notice  of  such 
injuries,  unless  they  involve  a  breach  of  contract  on  the  part 
of  the  master  against  the  servant,  and  thus  give  the  servant  a 
right  of  action  against  the  wrongdoer  for  malicious  interference 
with  his  contract  relations.  But  there  would  seem  to  be  no 
valid  reason  why  the  courts  should  not  recognize  the  privation, 
of  an  opportunity  to  serve  as  an  injury  equal  to  the  privation  of 
service,  and  afford  to  the  servant  as  effectual  a  remedy  for  the 
former  injury  as  they  now  give  to  the  master  for  the  latter  in 
cases  where  no  contract  exists. 

Rem.  Where  a  servant  is  not  only  employed  by  his  master,  but 
derives  his  support  in  whole  or  in  part  from  him,  the  relation 
which  he  sustains  to  his  master,  as  a  dependant  toward  his 
family  head,  gives  him  a  right  of  action  for  injuries  inflicted  on 
the  master  which  deprive  the  servant  of  such  support. 

Read:  Andrews,  American  Law,  §§  679-681; 
Ante,  §  22L 


SECTION  V 

OF    PRIVATE    WRONGS    AGAINST    THE    RELATION    BETWEEN    A 
FAMILY    HEAD    AND    HIS    DEPENDANTS 

§  231.     Of  the  Wrongs  which  Violate  the  Rights  of  a  Family 
Head  in  and  to  his  Dependants. 

Where  the  head  of  a  familij  occuj)ies  toward  its  dependent 
members  the  legal  relation  of  a  parent  or  master,  their  abduction, 
physical  injury,  or  seduction  affect  his  rights  in  the  same  manner, 
though  not  always  to  the  same  extent,  as  if  he  were  their  actual 
master  or  their  natural  parent.  But  where  the  dependants, 
though  Hving  in  the  same  household,  owe  to  the  family  head  no 


260  ELEMENTARY  LAW  §  232 

duty  or  service,  and  have  no  claim  upon  him  for  support  and 
care  in  case  of  injury,  the  conduct  of  third  parties  toward  them 
does  not  infringe  his  legal  rights  in  them,  however  serious  may 
be  the  consequences  to  themselves. 

Rem.  Thus  where  the  grandfather  of  an  illegitimate  child 
received  the  child  into  his  household  and  maintained  it,  he  was 
held  to  be  able  to  sue  for  its  abduction  though  no  otherwise  re- 
lated to  it  than  as  he  stood  to  it  in  loco  -parentis.  But  where  a 
girl  lived  in  the  family  of  her  brother-in-law,  having  no  contract 
relation  to  him  though  rendering  some  service  in  the  household, 
it  was  held  that  he  had  no  such  rights  in  her  as  entitled  him  to 
sue  for  her  seduction. 

Read:  Andrews,  American  Law,  §§  513-515, 


§  232.     Of  the  Violation  of  the  Rights  of  a  Dependant  in  and  to 
the  Family  Head. 

Where  the  family  head  occupies  toward  the  dependant  neither 
the  relation  of  husband,  parent,  guardian  nor  master,  the  sole 
right  of  the  dependant  in  the  family  head  is  the  right  of  protection 
and  support.  Where  even  this  right  does  not  exist,  no  wrongful 
conduct  of  third  parties  toward  the  family  head  can  prejudice 
the  rights  of  the  dependant.  But  where  the  dependant  is  actually 
supported  in  whole  or  in  part  by  the  family  head,  and  has  a 
natural  or  legal  right  to  the  continuance  of  such  support,  any 
unlawful  action  or  omission  of  other  persons  wliich  impairs  the 
ability  of  the  family  head  to  render  such  support  is  a  wrong  for 
wliich  the  dependants  also  have  a  remedy. 

Rem.  Where  a  wrong  consists  simply  in  a  privation  of  sup- 
port the  nearness  or  remoteness  of  the  relation  is  not  material. 
Nor  can  the  injury  to  his  feelings,  nor  the  loss  of  companionship 
nor  of  social  rank,  be  considered.  The  pecuniary  value  to  the  de- 
pendant of  the  health  or  life  of  the  family  head  is  the  only  foun- 
dation of  the  right  of  action  and  the  sole  measure  of  damages. 

Read:  Clark,  Elementary  Law,  §  125; 
Cooley  on  Torts,  pp.  283-324. 


§  233  WRONGS  AGAINST  FAMILY  RIGHTS  261 


SECTION  VI 

OF    PRIVATE    WRONGS    COMMITTED    BY    MEMBERS    OF    THE    SAME 
FAMILY   AGAINST   ONE   ANOTHER 

§  233      Of  the  Wrongs  Committed  by  the  Superior  in  a  Relation 
against  the  Inferior. 

Apart  from  cases  in  which  a  contract  element  enters  into  a 
relation  it  has  been  the  general  policy  of  the  law  not  to  notice 
wrongs  comniitted  by  the  parties  against  one  another,  unless 
the  wrong  constitutes  a  crime  against  the  public,  or  would  be 
an  actionable  tort  between  the  parties  if  no  relationship  ex- 
isted. It  was  presumed  that  the  authority  of  the  superior  over 
the  inferior  would  be  reasonably  exercised,  and  his  duties 
toward  the  inferior  would  be  faithfully  discharged ;  and  in  the 
absence  of  gross  abuse,  or  neglect  amounting  to  a  crime,  the 
law  gave  no  redress  to  the  inferior  against  the  superior  for  any 
violation  of  iiis  family  rights.  Thus  a  wife  had  no  redress 
against  her  husband  for  injuries  inflicted  upon  her  person,  or 
for  refusing  to  provide  her  with  the  necessaries  of  life,  or  for  any 
misconduct  derogatory  to  her  health  or  reputation,  or  for  any 
destruction  or  dissipation  of  her  property,  unless  he  thereby 
became  liable  to  a  criminal  prosecution.  A  similar  rule  obtained 
in  reference  to  wrongs  committed  by  parents  against  their 
children,  by  guardians  of  the  person  against  their  wards,  and 
by  masters  against  their  menials  and  apprentices.  Modern 
ideas  concerning  the  personal  rights  of  inferiors  have,  howev(T, 
modified  these  ancient  hardships,  not  so  much  by  curtailing  the 
powers  and  immunities  of  the  superior  as  by  providing  methods 
for  the  escape  of  the  inferior  from  further  injury,  by  granting 
a  divorce  to  the  abused  or  neglectetl  wife,  and  by  removing  an 
oppressed  child  or  ward  or  servant  from  tlii'  custody  and  control 
of  the  superior. 

Rem.  The  policy  of  the  law  in  denying  rights  of  action  to  in- 
feriors against  tlieir  superiors  in  the  cases  above  mentioned  grew 
out  of  the  conviction  that  tiie  recognition  of  such  rights  would  be 
fatal  to  that  family  peace  and  order  wliich  are  so  necessary  to  the 
well-being  of  society.     Hence,  tlic  relief  iicconied  to  inferiors  at 


262  ELEMENTARY   LAW  §  234 

the  present  day  is  usually  confined  to  methods  which  support 
family  authority  while  protecting  individual  inferiors  against 
further  injury. 


§  234.     Of  the  Wrongs  Committed  by  the  Inferior  in  a  Relation 
against  the  Superior. 

The  refusal  of  a  wife  to  render  to  her  husband  that  obedience 
and  service  which  form  her  portion  of  the  marital  obligation  is 
in  its  nature  a  species  of  treason,  and  inflicts  a  vital  injury  upon 
the  family  rights  of  the  husband.  The  rebellion  of  a  child 
against  its  parent,  or  of  a  ward  or  servant  against  his  superior, 
partakes  of  the  same  character  and  may  equally  imperil  the 
family  relation.  Formerly,  the  law  recognized  the  right  of  the 
superior  to  enforce  the  performance  of  the  duties  of  the  inferior 
by  any  reasonable  method;  but  at  the  present  day  the  legal 
authority  of  the  husband  to  compel  the  wife  to  fulfil  her  obli- 
gations is  generally  denied,  while  the  power  of  other  superiors 
to  regulate  the  conduct  of  their  inferiors  is  restricted  within 
almost  prohibitory  limits.  The  laws  which  have  thus  weakened 
family  authority  have  established  nothing  in  its  place,  to  the 
great  detriment  of  social  order  and  the  general  relaxation  of 
public  morals. 

Rem.  Fortunately  the  increased  recognition  of  the  contract 
relation  between  family  superiors  and  inferiors  relieves  society  to 
some  extent  from  the  evils  consequent  upon  the  gradual  disap- 
pearance of  family  authority.  A  husband  cannot  yet  sue  his 
wife  for  a  breach  of  the  marriage  contract,  but  in  certain  extreme 
cases  her  misconduct  is  treated  as  a  good  ground  for  a  dissolution 
of  the  contract  itself.  A  parent  cannot  cast  his  disobedient  child 
upon  the  public  for  support  by  refusing  to  provide  for  it  him- 
self, but  he  may  usually  transfer  its  custody  to  public  institu- 
tions where  it  will  be  compelled  to  labor  and  obey.  A  guardian  of 
the  person  may  be  relieved  from  further  trouble  with  his  ward  by 
resigning  his  office,  and  a  master  may  dismiss  an  unruly  servant 
or  bring  an  action  against  him  for  neglect  of  duty. 


§  235  TORT-FEASORS  263 


CHAPTER  IV 

OF    TORT-FEASORS 

§  235.     Of  Sole  Tort-Feasors. 

No  person  can  commit  a  wrong  unless  he  is  bound  by  the 
legal  obligation  which  the  wrong  infringes.  A  contract  can  be 
broken  only  by  one  who  entered  into  the  contract  at  a  time 
when  he  was  legally  qualified  to  make  it.  Hence  no  wrong  is 
committed  by  infants,  lunatics,  married  women,  or  persons 
under  duress,  when  they  fail  to  perform  agreements  made  dur- 
ing their  disability.  But  all  persons  are  under  legal  obligation 
not  to  commit  voluntary  torts,  and  therefore  every  person  who 
commits  a  tort,  unless  he  acts  under  compulsion,  is  responsible 
for  the  injury,  whether  he  be  an  infant  or  adult,  married  or 
single,  lunatic  or  sane.  Moreover,  torts  may  be  committed  either 
by  the  wrongdoer  directly  or  through  his  authorized  agent, 
except  in  cases  like  criminal  conversation  or  seduction,  where 
the  personal  act  of  the  tort-feasor  is  essential  to  the  wrong. 
To  render  a  principal  responsible  for  the  tortious  act  of  his 
agent  it  is  not  necessary  that  he  should  command  the  wrong  or 
be  present  at  its  commission ;  it  is  enough  if  he  places  the 
agent  in  such  relations  to  third  parties  that  they  suffer  injuries 
which  would  be  otherwise  impossible.  Corporations  may  thus 
be  liable  for  the  torts  of  their  officers  and  employees  in  the  course 
of  their  employment,  even  when  they  act  against  the  rules  of 
the  company  by  which  they  are  employed.  The  agent  who 
perpetrates  the  tort  is  not  exempt  from  liability  because  he  acts 
by  order  of  his  principal  unless  the  wrong  consists  in  a  breach 
of  contract  by  which  the  principal  alone  is  bound.  Again,  a 
tort  may  be  committed  through  the  instrumentality  of  animals 
as  well  as  men.  When  cattle  stray  into  the  land  of  other  persons 
than  their  owner,  their  owner  or  custodian  is  responsible  for 
the  injury  they  inflict,  unless  the  intrusion  of  the  cattle  is  due  to 


264  ELEMENTARY   LAW  §  236 

the  negligence  of  the  owner  of  the  land.  -A  person  who  harbors 
ferocious  animals,  which  he  knows  to  be  ferocious,  is  liable  for 
any  damage  they  may  do  to  persons  or  property,  though  they 
never  leave  his  premises;  and  if  they  wander  on  to  other  land 
he  is  responsible  for  the  mischief  they  commit,  although  he  had 
no  previous  warning  of  their  vicious  propensities.  When  one 
employs  his  animals  to  inflict  an  injury,  as  by  setting  his  dog 
upon  his  neighbor's  cattle,  his  act  is  a  wanton  trespass,  and  his 
liability  is  the  same  as  if  the  injury  had  been  maliciously  com- 
mitted by  himself. 

Rem.  The  liability  of  an  infant  for  his  personal  torts  is  not 
lessened  by  the  fact  that  he  acted  under  the  direction  of  his  father, 
nor  that  of  a  lunatic  because  he  was  not  capable  of  self-direction 
and  control.  A  parent  or  guardian  is  not  responsible  for  the  torts 
of  his  child  or  ward,  unless  the  ward  or  child  was  acting  for  him 
as  his  agent. 

Read:  Clark,  Elementary  Law,  §§  99,  101-103; 
Addison  on  Torts,  §§  86-114; 
Cooley  on  Torts,  pp.  113-141,  397-412,  622-669; 
Pollock  on  Torts,  pp.  58-208; 
Jaggard  on  Torts,  §§11-21,  70-99; 

§  236.     Of  Joint  Tort-Feasors. 

Where  several  persons  are  jointly  bound  by  a  contract  the 
breach  of  the  contract  by  one  or  more  of  them  is  a  joint  wrong 
for  which  all  are  jointly  liable;  and  all  must  be  sued  for  the 
breach  in  a  joint  action,  and  if  one  pays  the  damages  recovered 
he  has  a  right  to  call  upon  the  others  to  contribute  their  respec- 
tive shares.  But  joijit  tort-feasors  are  individually  liable  for 
all  the  injuries  committed  in  pursuance  of  the  common  enter- 
prise, and  may  be  sued  separately  or  together,  at  the  option  of 
the  injured  party;  and  should  one  pay  the  entire  damages  he 
would  have  no  claim  against  the  others  for  any  contribution.  All 
persons  advising  the  perpetration  of  a  tort,  or  aiding  and  abetting 
its  commission,  may  be  treated  as  joint  tort-feasors,  though 
absent  when  the  injury  was  inflicted. 

Rem.  These  rules  concerning  the  individual  liability  of  joint 
tort-feasors  do  not  apply  to  cases  where  the  tort-feasors  acted  in 
good  faith  in  the  assertion  of  an  apparent  right,  and  were  igno- 


§  236  TORT-FEASORS  265 

rant  of  their  error  until  it  was  disclosed  by  the  judgment  of  the 
court.  In  such  cases  the  liability  for  the  tort  is  joint,  not  several ; 
and  each  tort-feasor  must  contribute  his  proportionate  share 
toward  the  payment  of  the  damages.  In  all  cases  of  tort  a  re- 
lease in  writing  under  seal,  granted  to  one  of  the  wrongdoers  by 
the  injured  party  for  a  valuable  consideration,  enures  to  the  bene- 
fit of  all  the  tort-feasors  alike,  and  operates  as  the  discharge  of  all 
from  further  liability. 

Read:  Addison  on  Torts,  §§  82-85; 
Cooley  on  Torts,  pp.  142-183; 
Pollock  on  Torts,  pp.  230-233; 
Jaggard  on  Torts,  §§  66-69,  115-118. 


266  ELEMENTARY  LAW  §  237 


PART   II  — OF    LEGAL   REMEDIES 

§  237.     Of  the  Nature  and  Classification  of  Legal  Remedies. 

A  legal  remedy  is  the  necessary  counterpart  and  complement 
of  a  legal  right.  A  natural  right  becomes  a  legal  right  when 
the  law  undertakes  to  assert  and  enforce  it  by  providing  a 
remedy  for  its  infringement.  Hence  the  maxim  uhi  jus  ibi 
remedium  is  strictly  true:  the  jtis  being  the  legal  right;  the 
remedium  being  the  method  which  the  law  provides  for  its 
protection.  Legal  remedies  are  divisible,  according  to  their 
e^ed,  into  two  classes :  (1)  Preventive;  and  (2)  Compensatory. 
Preventive  remedies  anticipate  a  threatened  wrong,  and  protect 
the  legal  right  from  violation.  Compensatory  remedies  redress 
a  violated  right  either  by  restoring  the  injured  party  to  his  former 
condition,  or  by  awarding  liim  some  other  benefit  or  privilege 
in  lieu  of  that  of  which  he  has  been  deprived.  Legal  remedies 
are  also  divisible,  according  to  the  authority  by  which  they  are 
applied,  into  two  classes:  (1)  Extra-judicial;  (2)  Judicial. 
Extra-judicial  remedies  are  those  which  the  parties  to  the  injury 
may  themselves  apply,  under  the  sanction  of  the  law,  but  with- 
out the  aid  of  a  court  of  justice.  Judicial  remedies  are  those 
which  the  State,  as  the  administrator  of  the  law,  applies  through 
the  agency  of  courts  of  justice. 

Rem.  Preventive  remedies,  when  available  at  all,  are  practi- 
cally efficacious.  Compensatory  remedies  are  always  available 
but  are  frequently  of  no  practical  value,  because  the  wrongdoer 
is  unable  to  give  the  injured  party  the  compensation  awarded  by 
the  law.  Extra-judicial  remedies  are  relics  of  a  social  condition 
in  which  the  law  left  injured  parties  to  obtain  redress  for  private 
wrongs  by  some  method  of  reprisal  or  retaliation  against  the 
wrongdoer;  and  are  still  retained  because  in  many  instances  no 
judicial  remedy  would  be  available  or  adequate.  The  extra- 
judicial remedies  at  present  sanctioned  by  the  law  are  ten: 
(1)  Self-defence;  (2)  Recaption;  (3)  Entry;  (4)  Abatement; 
(5)   Distress;    (6)  Accord   and   Satisfaction;     (7)    Arbitration; 


§  237  LEGAL   REMEDIES  267 

(8)  Retainer;  (9)  Remitter;  (10)  Lien.  Of  these  the  first  five 
are  forcible  acts  of  the  injured  party ;  the  sixth  and  seventh  arc 
joint  acts  of  the  injured  and  the  injurer ;  the  remaining  three  are 
the  effect  of  the  operation  of  the  law  upon  the  conditions  and 
relations  of  the  parties. 

Read:  Rob.  Am.  Jur.,  §§  14&-161; 
3  Bl.  Com.,  pp.  22,  23,  116; 
Broom,  Leg.  Ma.x.,  pp.  191-210; 
Barbour,  Rights  of  Persons  and  Property,  p.  760; 
Andrews,  iVmerican  Law,  §  625; 
Clark,  Elementary  Law,  §§  240,  241,  243-245; 
Addison  on  Torts,  §  60; 
Cooley  on  Torts,  pp.  21,  22,  45; 
Jaggard  on  Torts,  §§  10,  27; 
Perry  on  Pleading,  pp.  11,  12. 


268  ELEMENTARY  LAW  §  238 


CHAPTER  I 

OF    EXTRA-JUDICIAL    REMEDIES 

§  238.    Of  Self-Defence. 

Self-defence  is  the  act  of  a  party  forcibly  resisting  a  forcible 
attack  upon  his  own  person  or  property,  or  upon  the  persons  or 
property  of  those  whom  by  law  he  has  a  right  to  protect  and 
defend.  The  degree  of  force  permissible  in  self-defence  depends 
upon  the  force  of  the  attack,  and  the  object  against  which  it  is 
directed.  When  the  force  used  in  self-defence  is  unnecessary  or 
excessive  the  party  using  it  becomes  himself  a  wrongdoer,  and 
is  liable  for  the  injuries  which  his  unnecessary  or  excessive 
force  occasions.  That  the  force  properly  employed  in  self- 
defence  unavoidably  disturbs  the  public  peace,  or  accidentally 
injures  third  persons,  does  not  render  such  force  unlawful. 

Rem.  Every  one  may  lawfully  resist  an  attack  upon  the  per- 
sons or  property  of  his  wife,  child,  or  parent,  or  of  any  member 
of  his  immediate  household.  Every  one  may  also  lawfully  inter- 
fere by  force  to  prevent  or  repel  a  felonious  assault  upon  a  stran- 
ger. To  kill  in  self-defeyice  is  lawful  in  order  to  prevent  death  or 
mayhem  or  serious  bodily  harm,  provided  no  other  method  of 
resistance  or  escape  appears  to  have  been  available,  unless  the 
defender  has  himself  provoked  the  original  attack ;  and  even  then 
if  he  has  openly  declined  a  further  combat,  and  has  retreated  as 
far  as  he  could  do  without  increasing  his  own  danger.  One  may 
also  kill  to  defend  his  property  against  arson,  burglary,  robbery, 
and  other  violent  felonious  attacks ;  or  in  resisting  a  false  impris- 
onment attempted  without  color  of  authority ;  but  not  in  defend- 
ing against  mere  misdemeanors  or  trespasses  or  nuisances,  nor 
in  endeavoring  to  escape  from  an  arrest  which  is  apparently  legal 
or  by  a  lawful  officer,  though  the  officer  may  be  mistaken  as  to 
the  identity  of  the  defender.  Whether  the  force  used  in  self- 
defence  was  unnecessary  or  excessive  should  be  judged  by  the 
conditions  as  they  appeared  to  the  person  using  the  force  at  the 
time  when  the  force  was  exercised,  and  not  from  any  subsequent 
discovery  that  his  danger  was  less  than  he  then  supposed. 


§§  239,  240         EXTRA-JUDICIAL  REMEDIES  269 

Read:  3  Bl.  Com.,  pp.  3,  4; 

Barbour,  Rights  of  Persons  and  Property,  pp.  773-776; 

Walker,  American  Law,  §  263; 

Clark,  Elementary  Law,  §  241; 

Boone,  Real  Property,  §  412; 

Addison  on  Torts,  §§  121-124; 

Cooley  on  Torts,  pp.  51,  165-169,  204,  345; 

Pollock  on  Torts,  pp.  201-205; 

Jaggard  on  Torts,  §  51 ; 

Perry  on  Pleading,  pp.  12-15. 


§  239.     Of  Recaption. 

Recaption  is  the  act  of  a  party  whose  wife,  child,  ward,  servant, 
or  personal  chattels  have  been  unlawfully  taken,  or  are  now 
unlawfully  detained  from  his  possession,  whereby  he  retakes 
them  into  his  possession  without  the  aid  of  legal  process.  This 
he  may  lawfully  do  wherever  he  can  find  them,  provided  he 
does  not  commit  an  assault  upon  the  abductor  or  detainor,  nor 
disturb  the  public  peac(%  nor  frespuss  on  the  {property  of  any 
person  who  is  not  privy  to  the  unlawful  detention. 

Rem.  This  remedy  is  available  whether  the  abduction  or  de- 
tainer was  ])erpetrated  by  force  or  by  fraud.  Atidncird  property 
can  be  recaptured  as  long  as  it  can  l)e  id<Mitified,  but  not  after  it 
has  been  so  incorporated  with  other  ])roperty  as  to  lose  its  sepa- 
rate existence.  But  where  the  abducted  goods  are  merely  com- 
mingled with  other  goods  and  can  be  severed  from  them,  or  the 
whole  mass  can  be  ])ro])ortionately  divided,  this  can  be  done  by 
the  recaptor;  or  if  tlie  original  commingling  was  intentional  as 
well  as  wrongful,  and  a  separation  is  now  impossible,  the  recap- 
tor  nuiy  appropriate  the  wliole. 

Read:  3  Bl.  Com.,  pp.  4,  5; 

Barbour,  Rights  of  Persons  and  Property,  pp.  776,  777; 
Clark,  Elementary  Law,  §  241; 
Addison  on  Torts,  §  542; 
Cooley  on  Torts,  pp.  50-56; 
.Pollock  on  Torts,  pp.  469-472; 
Perry  on  Pleading,  p.  15. 

§  240.     Of  Entry. 

Entrij  is  the  act  of  a  party  who  has  been  wrongfully  excluded 
from  lands  to  the  inunediate  jjossession  of  which  he  is  entitled, 
whereby  he  regains  possession  without  resorting  to  legal  proceed- 


270  ELEMENTARY   LAW  §  241 

ings.  To  render  this  remedy  effective  the  claimant  must  go 
upon  the  land,  or  as  near  it  as  its  occupants  will  permit,  and 
there  assert  his  claim.  Formerly,  he  might  enter  hy  force  and 
expel  the  intruder,  but  this  was  forbidden  by  the  Act  of  5  Rich- 
ard II  (a.  d.  1381),  and  he  must  now  pursue  his  remedy  at 
law  if  the  occupant  resists  his  claim.  Where  the  present  occu- 
pation originated  in  a  lawful  act,  as  in  cases  of  discontinuance 
and  deforcement,  or  where  the  right  of  entry  has  been  tolled 
or  taken  away  by  the  descent  of  the  lands  from  the  original 
intruder  to  his  heir,  the  only  remedy  of  the  claimant  is  by  an 
action  at  law.  The  effect  of  an  entry  is  neutralized  by  new  acts 
of  dominion  on  the  part  of  the  intruder,  and  the  right  itself  is 
lost  unless  it  is  asserted  and  enforced  by  an  action  within  the 
time  fixed  by  the  Statute  of  Limitations. 

Rem.  Entry  may  be  the  exercise  of  an  undisputed  right,  as 
where  a  grantee  takes  possession  of  the  granted  land ;  or  it  may 
be  a  legal  remedy  against  a  completed  wrong.  In  the  latter  case 
the  act  of  entry  must  be  open  and  unequivocal,  and  must  convey 
to  the  unlawful  occupant  a  definite  knowledge  of  the  claim  under 
which  it  is  made.  Where  several  tracts  of  land  in  the  possession 
of  the  same  occupant  are  claimed  by  the  same  party,  his  entry 
upon  one  in  the  name  of  all  will  be  sufficient.  Where  an  entry 
does  not  result  in  the  expulsion  of  the  intruder  it  nevertheless 
vests  in  the  claimant  the  seisin  of  the  land,  enabling  him  to  cre- 
ate estates  of  freehold,  maintain  actions,  and  transmit  the  land 
to  his  own  heirs  by  descent. 

Read:  3  Bl.  Com.,  pp.  5,  174-179; 

Barbour,  Rights  of  Persons  and  Property,  pp.  777-779; 

Clark,  Elementary  Law,  §  241; 

Addison  on  Torts,  §§  390,  391,  409,  421; 

Cooley  on  Torts,  pp.  57,  58; 

Perry  on  Pleading,  p.  15; 

Washburn  on  Real  Property,  §§  953-968; 

Bolles,  Important  English  Statutes,  p.  21,  Act  5  Rich.  II. 


§  241.     Of  the  Abatement  of  Nuisances. 

The  abatement  of  a  nuisance  is  the  act  of  a  party  who  is  suffer- 
ing from  a  nuisance  to  his  person  or  property  whereby  he  re- 
moves the  cause  of  his  injury.  A  nuisance  may  result  from 
the  commission  of  an  unlawful  act,  or  from  the  omission  of  a 
legal  duty.    A  nuisance  arising  from  the  commission  of  an  un- 


§  242  EXTRA-JUDICIAL  REMEDIES  271 

lawful  act,  as  by  the  deposit  of  noxious  substances  in  a  place 
where  they  cause  injury  to  others,  may  be  abated  by  the  injured 
party  after  due  notice  to  the  wrongdoer  and  a  request  to  him 
to  remove  it,  provided  it  can  be  done  w-ithout  a  breach  of  the 
peace,  or  an  assault  upon  the  wrongdoer,  or  damage  to  inno- 
cent third  parties.  In  urgent  cases,  where  Ufe  is  in  immediate 
danger,  an  abatement  without  previous  notice  and  request  is 
permitted.  A  nuisance  arising  from  the  omission  of  a  legal  duty 
is  not  ordinarily  abatable,  but  in  great  emergencies  where  no 
judicial  remedy  can  be  at  once  obtained,  and  an  irreparable  loss 
is  imminent,  the  injured  party  may  fulfil  the  duty  and  avoid  the 
injury.  When  a  nuisance  affects  the  general  public,  like  an 
obstruction  in  a  highway  or  a  na\igable  river,  any  person  who 
is  likely  to  be  incommoded  by  it  may  remove  it.  Every  abator 
of  a  nuisance  acts  at  his  oum  peril,  and  is  hable  to  a  suit  for 
damages  if  the  alleged  nuisance  was  a  lawful  action  or  omis- 
sion, or  was  not  abatable. 

Rem.  An  abatement  must  be  strictly  confined  to  the  cause  of 
the  injury,  and  the  thing  abated  must  be  a  nuisance  at  the  time 
of  the  abatement.  If  the  existence  of  the  thing  is  the  nuisance, 
the  thing  may  be  destroyed;  if  its  use  is  the  nuisance,  the  use 
alone  may  be  prevented ;  if  its  location  is  the  nuisance,  its  loca- 
tion may  be  changed  so  far,  and  so  far  only,  as  is  necessary  to 
remove  the  injury.  In  no  case  can  the  abator  appropriate  to  him- 
self the  injurious  substance  under  pretence  of  an  abatement. 
^Where  the  nuisance  consists  in  an  excess,  which  is  inseparable 
from  the  lawful  portion  of  the  injurious  act  or  omission,  the  whole 
may  be  abated. 

Read:  3  Bl.  Com.,  pp.  5,  6; 

Barbour,  Rights  of  Persons  and  Property,  pp.  779-782; 

Clark,  Elementary  Law,  §  241 ; 

Boone,  Real  Property,  §§  562-593; 

Addison  on  Torts,  §§  58,  410-412; 

Cooley  on  Torts,  pp.  46-49 ; 

Pollock  on  Torts,  pp.  513-517; 

Jagpard  on  Torts,  §  245 ; 

Perry  on  Pleading,  p.  16. 

§  242.     Of  Distress. 

Distress  is  the  act  of  a  party  who  has  sustained  some  legal 
injury,   whereby   he   seizes   the  goods  of    the   wrongdoer,   and 


272  ELEMENTARY  LAW  §  242 

detains  them  until  satisfaction  has  been  made.  This  remedy 
was  once  of  almost  universal  application,  but  is  now  generally 
confined  to  the  collection  of  overdue  rent,  and  of  damages  for 
injuries  committed  by  trespassing  cattle.  In  some  of  our  States 
it  has  never  been  recognized;  where  it  does  exist,  it  is  strictly 
regulated  by  statutes. 

Rem.  Where  a  distress  for  overdue  rent  is  permitted  by  the 
local  law,  the  landlord  can  apply  the  remedy  only  where  there  is 
an  actual  lease  between  himself  and  the  tenant,  in  which  a  rent 
certain  in  amount  and  in  time  of  payment  is  specifically  reserved ; 
and  where  he  has  a  reversionary  interest  which  is  to  take  effect 
at  the  expiration  of  the  lease ;  and  where  he  levies  the  distress  after 
the  rent  has  become  due  and  while  the  relation  created  by  the 
lease  between  himself  and  the  tenant  still  subsists.  In  making 
the  distress  he  may  take  any  goods  which  he  finds  upon  the  prem- 
ises except  the  following :  (1)  Those  which  are  not  legally  capable 
of  ownership;  (2)  Those  which  are  in  actual  use  at  the  time  of 
the  distress ;  (3)  Those  which  are  necessary  to  maintain  a  trade ; 
(4)  Those  which  cannot  be  restored  in  specie  after  the  claim  is 
satisfied ;  (5)  Those  which  belong  to  a  stranger,  and  are  on  the 
land  in  the  ordinary  course  of  business ;  (6)  Those  which  are  in 
the  custody  of  the  law  under  a  prior  process ;  (7)  Beasts  of  the 
plow,  fixtures,  agricultural  implements,  and  tools  necessary  to 
the  prosecution  of  some  industrial  occupation.  The  seizure  must 
be  made  without  a  breach  of  the  peace  or  an  assault,  and  the 
goods  when  seized  must  be  preserved  from  injury,  and  not  used 
unless  their  use  is  essential  to  their  welfare.  Formerly,  they  were 
held  by  the  landlord  as  a  pledge  until  the  tenant  chose  to  redeem 
them  by  paying  the  rent.  Under  later  laws  they  may  generally 
be  sold  after  due  notice  to  the  tenant ;  the  surplus  of  the  proceeds, 
after  payment  of  the  rent  and  expenses,  being  restored  to  him.  A 
distress  of  cattle  damage  feasant  may  be  made  by  the  owner  or 
occupant  of  the  land  into  which  they  intrude,  provided  he  has 
himself  complied  with  all  those  provisions  of  the  law  which 
direct  him  to  protect  his  land  by  suitable  fences  or  otherwise,  and 
provided  also  that  the  cattle  can  be  seized  by  him  while  they  are 
actually  on  the  land.  Cattle  thus  distrained  must  not  be  injured, 
nor  used  except  for  their  own  good;  but  must  be  taken  to  the 
public  pound,  and  there  detained  by  the  pound-keeper  until  they 
are  redeemed  by  their  owner,  or  are  sold  after  due  notice  to  him 
or  reasonable  delay;  and  the  proceeds  must  be  used  to  satisfy 
the  just  demands  of  the  distrainor  and  the  surplus  paid  to  their 
owner.  Where  there  is  no  public  pound  the  distrainor  may  keep 
them  in  his  own  enclosure  until  they  are  redeemed  or  sold. 


§  243  EXTRA-JUDICIAL   REMEDIES  273 

Read:  3  151.  Com.,  pp.  6-15; 

Barbour,  Rights  of  Persons  and  Property,  pp.  782,  783; 

Clark,  Elementary  Law,  §  241; 

Addison  on  Torts,  §§  59,  413-418; 

Cooley  on  Torts,  pp.  58-60; 

Pollock  on  Torts,  pp.  472-474; 

Perry  on  Pleading,  pp.  16,  17; 

1  Parsons  on  Contracts,  pp.  517,  518. 


§  243.     Of  Accord  and  Satisfaction. 

An  accord  and  satisfaction  is  tlie  agreement  of  the  injurer  to 
give,  and  of  the  injured  party  to  receive,  some  valuable  service 
or  thing  as  a  compensation  for  the  injury,  followed  by  the  actual 
giving  and  receiving  of  the  stipulated  service  or  thing.  This 
remedy  includes  two  parts:  (1)  The  agreement  or  accord; 
(2)  The  performance  of  the  agreement  or  satisfaction.  The  ac- 
cord must  be  a  new  agreement,  made  by  and  between  the  par- 
ties to  the  controversy  upon  a  new  and  adequate  consideration 
beneficial  to  the  injured  party,  and  must  cover  the  whole  claim 
intended  to  be  compromised,  and  must  clearly  define  the  service 
or  tiling  which  is  to  be  given  and  received  in  satisfaction  thereof. 
The  satisfaction  must  be  actual  and  complete,  and  must  exactly 
correspond  with  the  accord;  no  part  performance  or  tender 
of  performance  answcTing  the  purj)ose.  Until  the  service  or 
thing  agreed  upon  in  the  accord  is  given  and  received  the  con- 
troversy is  still  open,  and  either  party  may  retract  and  insist 
uj)on  his  right  to  a  judicial  remedy.  An  accord  and  satisfaction 
obtained  by  the  fraud  or  duress  of  either  party  is  void. 

Rem.  All  persons  are  at  liberty  to  compromise  their  disputes, 
but  in  order  to  make  the  compromise  effective  it  must  conipiv 
with  the  foregoing  rules.  The  pecuniari/  value  of  the  stipulated 
service  or  thing  is  of  no  legal  importance  unless  the  claim  is  for  a 
definite  sum  of  money,  and  the  thing  to  be  given  in  satisfaction  of 
the  claim  is  money;  for  here  no  less  sum  than  is  actually  due  can 
be  a  satisfaction.  But  where  the  amount  of  th(>  debt  is  disputed, 
or  other  considerations  beside  the  paym(>iit  of  the  debt  enter  into 
the  agreement,  —  such  as  payment  before  maturity,  or  the  settle- 
ment of  pending  litigation,  or  an  agreeuKMit  of  the  creditors  of  an 
insolvent  debtor  to  accept  a  pro  rata  dividend  of  iiis  assets,  —  the 
payment  of  a  less  sum  tlian  the  actual  debt  may  be  sufficient. 

18 


274  ELEMENTARY   LAW  §  244 


■^ 


Read:  3  Bl.  Com.,  p.  16; 

Clark,  Elementary  Law,  §  241; 

Addison  on  Torts,  §  40; 

Perry  on  Pleading,  pp.  17,  18; 

2  Parsons  on  Contracts,  pp.  681-688. 


§  244.     Of  Arbitration  and  Award. 

Arbitration  and  award  is  the  agreement  of  the  injurer  and 
the  injured  to  submit  to  the  decision  of  a  third  person  all  ques- 
tions concerning  the  alleged  wrong,  followed  by  the  decision 
of  the  third  person  and  the  compliance  of  both  parties  there- 
with. This  remedy  contains  three  parts:  (1)  The  submission; 
(2)  The  award;  (3)  The  performance  of  the  award.  The  sub- 
mission may  be  by  parol  or  in  writing,  and  must  specify  precisely 
the  question  to  be  settled  by  the  arbitrator,  must  appoint  or 
provide  for  the  appointment  of  the  arbitrator,  and  must  for- 
mally agree  that  his  decision  shall  be  final.  In  spite  of  this  agree- 
ment, however,  either  party  may  revoke  the  submission  at  any 
time  before  the  award  is  published,  though  by  revoking  it  he 
may  become  liable  to  the  other  in  a  suit  for  damages.  The 
arbitrator  must,  within  a  reasonable  time  after  his  appointment, 
hear  the  parties  and  their  evidence,  and  investigate  every  ques- 
tion embraced  in  the  submission,  and  decide  it  according  to 
his  sense  of  justice  rather  than  by  technical  legal  rules;  and 
after  the  investigation  is  concluded  he  must  in  due  season  publish 
his  award.  The  award  must  conform  to  the  submission,  must 
cover  every  question  within  the  jurisdiction  of  the  arbitrator, 
and  must  be  clear  and  conclusive,  leaving  no  part  of  the  con- 
troversy open  for  future  adjustment,  but  directing  each  party 
what  to  do  and  what  to  forbear.  After  its  jniblication  by  the 
arbitrator  it  cannot  be  reopened  for  further  hearing,  nor  sub- 
stantially amended ;  but  has  the  effect  of  a  judgment,  and  binds 
the  parties  until  it  is  performed  or  set  aside  by  a  judicial  tribu- 
nal. The  perforviance  of  the  award  completes  the  remedy  and 
extinguishes  the  claim  from  which  the  arbitration  has  arisen. 
The  refusal  or  neglect  of  either  party  to  comply  with  the  award 
renders  him  liable  to  an  action  at  law  or  a  suit  in  equity  accord- 
ing to  the  nature  of  the  duty  which  the  award  imposes  upon 
him. 


§  245  EXTRA-JUDICIAL  REMEDIES  275 

Rem.  The  subject-matter  of  an  arbitration  must  be  some 
claim  which  the  law  would  recognize  and  enforce ;  and  the  parties 
must  be  the  claimant  or  his  legal  representative  and  the  person 
against  whom  the  claim  should  be  asserted.  When  the  submis- 
sion is  revocable  it  is  often  coupled  with  the  mutual  bond  of  the 
parties  obliging  the  one  who  revokes  to  pay  a  stipulated  sum  to 
the  other.  A  submission  is  avoided  by  the  death  of  either  party  or 
of  the  arbitrator ;  or  by  the  marriage  of  a  feme  sole  party ;  or  by 
the  judgment  of  a  court  deciding  the  controversy;  or  by  the  de- 
struction of  the  subject-matter  of  the  claim ;  or  by  its  transfer  to 
another  party.  Two  or  more  persons  may  be  chosen  to  act  as  ar- 
bitrators; and  where  an  odd  number  are  selected  the  odd  one 
may  serve  to  make  a  majority,  or  may  act  as  an  umpire  to  decide 
when  the  others  constitute  a  tie.  Two  or  more  arbitrators  cannot 
act  separately  but  must  meet  and  act  together,  and  in  presence  of 
the  parties  after  due  notice  to  them  of  the  time  and  place  of  hear- 
ing. They  are  7iot  liable  for  errors  resulting  from  ignorance  and 
inadvertence,  but  are  responsible  for  total  neglect  of  duty,  for 
corruption,  and  for  fraud.  Their  award  will  not  be  set  aside  on 
account  of  its  injustice  or  neglect  of  legal  formalities,  or  mistakes 
in  points  of  doubtful  law  ;  but  for  gross  errors  of  fact,  or  miscon- 
duct of  the  arbitrators  injurious  to  the  parties,  or  departure  from 
their  own  principles  of  decision,  or  disregard  of  the  submission, 
a  court  of  equity  will  declare  it  void,  and  prevent  the  parties  from 
carrying  it  into  effect.  Besides  this  extra-judicial  remeriy  it  is  the 
custom  in  some  localities  to  establish  an  arbitration  by  rule  of 
court,  as  a  part  of  judicial  proceedings,  to  investigate  and  decide 
certain  ((uestions  of  fact  which  are  too  intricate  for  the  deter- 
mination of  a  jury,  and  too  prolix  for  the  examination  of  a  judge. 
These  tribunals  are  governed  by  local  statutes  and  rules  of 
practice. 

Read:  3  Bl.  Com.,  pp.  16,  17; 

Clark,  Elementary  Law,  §  241; 

Perry  on  Pleadiiig,  p.  18; 

2  Parsons  on  Contracts,  pp.  688-712. 


§  245.     Of  Retainer. 

Retainer  is  the  remedy  which  the  law  gives  to  a  creditor  who 
has  been  appointed  executor  or  administrator  upon  the  estate 
of  his  debtor,  by  virtue  of  which  he  retains  out  of  the  estate  a 
sum  sufficient  for  the  payment  of  his  debt  in  preference  to  other 
creditors  of  the  same  degree.  This  remedy  was  permitted  be- 
cause the  law  gave  to  the  creditors  who  instituted  suit  a  priority 
over  all  the  others;    while  (he  executor  or  administrator  could 


276  ELEMENTARY  LAW  §  246 

not  sue  himself  and  would  thus  have  been  postponed  to  all  the 
others  unless  the  law  gave  him  the  right  to  pay  his  own  debt 
before  discharging  theirs. 

Rem.  The  same  reasons  would  apply  to  guardians,  trustees, 
and  assignees  in  bankruptcy.  Where,  however,  the  law  places 
all  creditors  of  the  same  degree  on  an  equal  footing,  and  prescribes 
the  payment  of  their  claims  pro  rata  without  reference  to  priority 
of  suit,  the  reason  for  this  remedy  disappears.  Such  is  generally 
the  rule  in  this  country,  and  where  it  prevails  retainer  is  practi- 
cally unknown. 

Read:  3  Bl.  Com.,  pp.  18,  19; 

Barbour,  Rights  of  Persons  and  Property,  pp.  784,  785; 
Perry  on  Pleading,  pp.  18,  19. 


§  246.     Of  Remitter. 

Remitter  is  the  remedy  which  the  law  gives  to  the  rightful 
owner  of  a  freehold  estate  in  lands  when  having  been  ousted  of 
possession,  and  having  no  right  of  entry  without  action,  he  after- 
wards has  another  and  defective  freehold  estate  with  a  right 
of  entry  cast  u])on  him  by  the  law  without  his  own  concurrence ; 
whereby  upon  his  entry  under  the  defective  title  he  is  pre- 
sumed to  hold  both  his  estate  and  his  possession  under  his 
former  and  perfect  title,  while  the  estate  existing  under  the 
defective  title  is  extinguished.  If,  however,  rather  than  vin- 
dicate his  own  title  by  an  action,  he  voluntarily  acf|uires  the 
defective  title  with  its  right  of  entry,  the  law  leaves  him  in  the 
condition  into  which  he  has  plunged. 

Rem.  This  remedy  rests  upon  the  same  reason  as  retainer, 
since  after  the  estate  and  right  of  entry  arc  cast  u]ion  the  disseisee 
by  the  law  he  can  neither  enter  on  himself  under  his  right  of 
entry  nor  sue  himself  under  his  valid  title,  and  thus  were  it  not 
for  the  remitter  the  actual  seisin  would  remain  permanently  sepa- 
rated from  the  true  estate.  This  is  a  dilemma  in  which  the  law 
would  not  allow  him  to  be  ])laced  by  its  own  action,  and  hence 
unites  in  him  the  lawful  seisin  and  the  valid  estate. 

Read:  3  Bl.  Com.,  pp.  19-21; 

Barbour,  Rights  of  Persons  and  Property,  pp.  785,  786; 
Perry  on  Pleading,  p.  19. 


§  247  EXTRA-JUDICIAL  REMEDIES  277 

§  247.     Of  Liens. 

A  lien  is  tlie  remedy  which  the  law  gives  to  a  person  who  has 
in  his  possession  the  goods  of  another,  upon  wliich  at  the  re- 
quest of  the  owner  he  has  expended  money,  time,  or  labor, 
whereby  he  retains  the  goods  in  his  possession  until  he  has  been 
compensated  by  their  owner.  Such  hens  inhere  in  carriers, 
innkeepers,  warehousemen,  agisters  and  other  bailees  operis 
faciendi,  in  attorneys  upon  the  papers  and  moneys  of  their 
clients,  and  in  consignors  upon  goods  in  transit  where  the  con- 
signee becomes  insolvent  and  the  goods  can  be  stopped  before 
they  reach  the  consignee.  Tliis  remedy  somewhat  resembles 
a  distress,  though  it  involves  no  act  of  seizure.  The  retaining 
lienor,  as  such,  has  no  right  to  sell  or  use  the  property;  but 
between  certain  classes  of  principals  and  agents  the  agent  in 
possession  has  a  general  lien  upon  the  property  to  secure  his 
balance  of  account,  and  unless  his  claim  is  settled  within  a 
reasonable  time  the  agent  may  sell  so  much  of  the  property  as 
will  satisfy  his  claim. 

Rem.  The  remedy  above  described  is  generally  known  as  the 
common-law  lien.  Besides  this  there  are  several  other  conditional 
interests  in  property  called  liens,  such  as  (1)  The  vendor  s  lien 
upon  land  which  continues  until  the  vendee  pays  the  stipulated 
price ;  (2)  the  mechanic  s  lien  upon  land  and  buildings  for  con- 
struction and  repairs ;  (3)  the  maritime  lien  upon  vessels  in  favor 
of  material-men  and  artisans  ;  (4)  the  judgment  lien  which  rests 
upon  the  property  of  a  judgment  debtor  until  the  judgment  is 
satisfied ;  (.'3)  the  ta.x  lien  which  vests  in  the  government  against 
taxed  property  until  the  tax  is  paid.  'J'hese  liens  do  not  imply 
possession  of  the  projxTty  to  which  the  lien  attaches,  but  require 
judicial  action  to  render  them  cti'ective.  The  common-law  lien, 
on  the  contrary,  is  a  complete  remedy  in  itself;  attaches  only  to 
articles  in  the  possession  of  the  lienor;  is  lost  whenever  that  pos- 
session is  voluntarily  reliiuiuished ;  extends  only  to  the  claim 
for  expenditure  or  labor  on  the  article  retained ;  and  is  released 
by  the  acceptance  of  any  other  security  for  that  amount,  or  by  an 
original  agreement  to  give  credit  until  a  future  day.  It  exists 
whether  or  not  the  jirice  of  the  service  or  expenditure  was  pre- 
viously settled  uj)on  between  the  parties,  and  even  though  the 
property  is  by  law  exempt  from  execution. 

Read:  2  Kent  Com.,  Lect.  xli,  pp.  634-642; 
Walker,  American  Law,  §  252; 
3  Parsons  on  Contracts,  pp.  234-285. 


278  ELEMENTARY  LAW  §  248 


CHAPTER   II 

OF   JUDICIAL    REMEDIES 

§  248.     Of  the  Constitution  and  Jurisdiction  of  Courts. 

A  judicial  remedy  is  a  remedy  applied  by  the  State  through 
the  instrumentaUty  of  courts  of  justice.  It  presupposes  a  con- 
troversy between  two  or  more  parties,  upon  some  question  of 
law  or  fact  which  is  formally  presented  to  the  court  for  its 
decision.  It  involves  an  investigation  by  the  court  of  the  ques- 
tion at  issue;  a  judgment  finally  determining  the  question  so 
far  as  the  present  controversy  is  concerned;  and  a  proceeding 
of  some  kind  to  carry  the  judgment  into  practical  effect.  A 
cmirt  is  thus  a  tribunal  having  power  to  hear,  to  judge,  and  to 
execute  its  own  decrees ;  and  this  power  is  called  its  jurisdiction. 
A  court  is  composed  of  one  or  more  public  officers  in  whom  these 
powers  reside.  A  fully  constituted  court  includes  a  judge,  a 
clerk,  and  a  sheriff  or  other  executive  officer.  It  is  the  duty  of 
the  judge  to  preside  over  and  direct  the  proceedings  of  the  court, 
and  to  decide  all  questions  of  law  or  fact  arising  in  the  course 
of  the  proceedings.  In  the  courts  of  common  law,  and  in  cer- 
tain cases  in  the  courts  of  equity,  his  investigations  of  questions 
of  fact  may  be  assisted  by  a  jury.  It  is  the  duty  of  the  clerk  to 
make  records  of  the  proceedings,  and  to  perform  such  minis- 
terial acts  as  the  proceedings  require.  It  is  the  duty  of  the 
sheriff  to  serve  the  process  of  the  court,  to  preserve  order  during 
its  sessions,  and  to  execute  its  judgments.  These  officers  con- 
stitute a  court  only  when  they  are  in  actual  session  for  judicial 
purposes,  at  the  time  and  in  the  place  and  manner  prescribed 
by  law.  Proceedings  at  another  time  or  place  or  manner,  though 
in  their  personal  presence,  are  coram  non  judice  and  void. 

Rem.  Courts  are  divisible  into  various  classes,  according  to 
their  relative  dignity  and  jurisdiction:  (1)  Courts  of  record  and 
courts  not  of  record;    (2)  Courts  of  superior  jurisdiction  and 


§  248  JUDICIAL  REMEDIES  279 

courts  of  inferior  jurisdiction  ;  (3)  Courts  of  general  jurisdiction 
and  courts  of  limited  jurisdiction ;  (4)  Civil  courts  and  criminal 
courts.  A  court  of  record  is  a  court  whose  judicial  functions  vest 
in  the  tribunal  as  such,  independently  of  the  official  power  of  the 
judges  who  preside  in  it,  and  whose  judicial  records  import  abso- 
lute verity  and  cannot  be  contradicted,  nor  be  amended  except 
by  the  court  itself  or  by  a  writ  of  error  or  appeal.  A  court  not  of 
record  is  a  court  whose  judicial  functions  attach  to  the  person  of 
the  officer  appointed  to  hold  it,  and  whose  records  are  not  indis- 
putable. A  court  of  record  is  of  higher  dignity  and  authority,  and 
usually  of  wider  jurisdiction,  than  a  court  not  of  record.  Whether 
any  given  court  is  of  record  or  not  of  record  is  determined  by  the 
law  which  creates  it.  A  court  of  superior  jurisdiction  is  a  court 
whose  judgments  are  final,  and  which  is  presumed  to  have  juris- 
diction over  all  matters  whereupon  it  undertakes  to  act.  A  court 
of  inferior  jurisdiction,  is  a  court  from  whose  judgment  an  appeal 
or  writ  of  error  lies  to  a  superior  court,  and  in  favor  of  whose 
jurisdiction  no  presumption  exists.  A  court  of  general  jurisdiction 
has  judicial  authority  over  controversies  of  various  and  indefinite 
species ;  and  every  controversy  is  presumed  to  be  within  its  juris- 
diction unless  the  law  has  placed  it  within  the  exclusive  cogni- 
zance of  some  other  court.  A  court  of  limited  jurisdiction  is  a 
court  whose  authority  is  confined  to  certain  species  of  contro- 
versies. A  civil  court  is  a  court  in  which  the  redress  of  private  in- 
juries is  sought  through  private  actions  brought  by  the  injured 
party.  A  criminal  court  is  a  court  before  which  the  State  prose- 
cutes, in  its  own  name,  those  persons  who  are  accused  of  public 
wrongs.  Courts  in  this  country  are  also  divisible  into  two  classes, 
according  to  the  governmental  authority  by  which  they  are  estab- 
lished, namely:  (1)  State  courts;  and  (2)  Federal  courts.  The 
State  courts  derive  their  authority  from  the  individual  States  of 
the  American  Union,  and  differ  in  their  number  and  relations  in 
the  different  States.  In  every  State,  however,  there  is  one  supreme 
tribunal  by  which  all  questions  of  law  may  be  finally  determined, 
and  one  or  more  inferior  courts  in  which  all  cases  not  withiu  the 
exclusive  jurisdiction  of  the  Federal  courts  may  be  heard  and 
decided.  The  Federal  courts  derive  their  authority  from  the 
Constitution  of  the  United  States  and  the  Acts  of  Congress. 
These  are  (1)  The  Supreme  Court  of  the  United  States,  which 
has  original  jurisdiction  over  cases  where  an  ambassador,  or  pub- 
lic minister,  or  consul,  or  a  State  may  be  a  party,  and  appellate 
jurisdiction  over  certain  classes  of  cases  arising  in  the  other 
Federal  courts;  (2)  The  Circuit  Court  of  Appeals,  having  appel- 
late jurisdiction  over  all  cases  arising  in  the  inferior  Federal  courts, 
except  such  as  are  within  the  exclusive  cognizance  of  the  Supreme 
Court;    (3)  The  Circuit  Courts  and  District  Courts,  which  have 


280  ELEMENTARY   LAW  §  248 

original  jurisdiction  over  numerous  civil  and  criminal  cases  aris- 
ing under  the  laws  of  the  United  States,  or  to  which  citizens  of 
different  States  are  parties ;  (4)  The  Cmirt  of  Claims,  having 
jurisdiction  of  claims  against  the  United  States  which  are  based 
on  contracts  or  statutes ;  (5)  The  Courts  of  the  District  of  Colum- 
bia, which  bear  the  same  relation  to  that  portion  of  the  United 
States  that  the  courts  of  the  individual  States  bear  to  their  re- 
spective sovereignties ;  (6)  The  Territorial  Courts,  through 
which  are  administered  the  laws  enacted  by  Congress  for  the 
judicial  government  of  the  various  Territories  until  their  erection 
into  sovereign  States.  The  jurisdiction  of  the  Federal  courts  is 
sometimes  exclusive  of,  and  sometimes  concurrent  with,  that  of  the 
State  courts ;  and  when  concurrent,  if  an  action  is  first  instituted 
in  a  State  court  it  is  there  completed  unless  removed  by  proper 
legal  methods  to  the  Federal  courts.  Courts  in  this  country  are 
also  divided,  according  to  the  form  of  tlieir  proceedings  and  the 
nature  of  the  remedies  which  they  are  able  to  apply,  into  seven 
classes :  (1)  The  Courts  of  Common  Law,  which  are  the  ancient 
customary  courts  of  Saxon  England,  and  have  jurisdiction  over 
all  actions  to  recover  property  in  specie  or  damages  for  past  in- 
juries, and  over  other  matters  which  by  custom  or  statute  have 
been  placed  under  their  control ;  (2)  The  Courts  of  Equity,  which 
were  introduced  into  England  after  the  Norman  Conquest  and 
gradually  perfected  till  the  reign  of  James  I,  and  take  cogni- 
zance of  cases  to  which  the  courts  of  common  law  could  not  apply 
a  remedy  adequate  to  the  demands  of  justice ;  (3)  The  Courts  of 
Admiralty,  which  are  established  in  all  maritime  nations  to  de- 
termine controversies  arising  out  of  commerce  upon  navigable 
waters ;  (4)  The  Courts  of  Probate,  which  are  created  to  supervise 
the  settlement  of  the  estates  of  deceased  persons  and  insolvents, 
and  sometimes  for  the  appointment  and  direction  of  guardians 
of  infants  and  incapables ;  (5)  Cmirts  Martial,  having  jurisdic- 
tion over  offences  committed  by  persons,  connected  with  the  army 
or  navy,  in  violation  of  military  laws ;  (6)  Military  Courts,  having 
juriadiction  over  offences  against  martial  law  in  periods  of  pub- 
lic disturbance,  when  the  ordinary  courts  are  unable  to  perform 
their  judicial  duties ;  (7)  Provisional  Courts,  which  are  established 
in  conquered  territory  to  preserve  order  and  protect  property 
until  the  usual  operations  of  civil  government  can  be  resumed. 

Read:  1  Bl.  Com.,  pp.  339-357; 
3  Bl.  Com.,  pp.  23-29; 
Rob.  Am.  Jur.,  §§  304-364; 
Andrews,  American  Law,  §§  626-630; 
Cooley  on  Torts,  pp.  1-6,  416-422; 
Jaggard  on  Torts,  §§  39-41; 
Perry  on  Pleading,  pp.  20-36; 
Maxwell  on  Pleading  and  Practice,  §§  1,  2,  16,  17,  908-925. 


§§  249,  250  JUDICIAL  REMEDIES  281 

§  249.     Of  the  Incidental  Powers  of  Courts. 

Every  court  possesses  certain  incidental  powers  which  are  or 
may  become  necessary  to  the  exercise  of  its  jurisdiction.  These 
are  (1)  The  power  to  make  and  enforce  rules  foT  its  own  guid- 
ance and  that  of  its  ofhccrs  and  suitors ;  (2)  The  power  to  keep 
records  of  its  own  proceedings,  and  where  they  are  incorrect  to 
amend  them :  (3)  The  power  to  appoint  and  remove  subordinate 
officers;  (4)  The  power  to  preserve  order  during  its  sessions; 
(5)  The  power  to  punish  for  contempt.  These  powers  are  in- 
herent in  the  court,  and  are  exercised  by  the  presiding  judge  or 
under  liis  immediate  sanction. 

Rem.  The  rules  of  a  court  arc  the  kiw  of  the  court,  and  bind 
all  persons  over  whom  the  court  has  jurisdiction,  unless  they  are 
repugnant  to  the  general  law.  The  records  of  a  rourt  are  presumed 
to  be  correct ;  but  clerical  errors  in  them  may  be  amended,  and 
mistakes  of  fact  may  be  |)erfected  or  exj)unged,  by  the  court  of  its 
own  accord  or  at  the  re({uest  of  the  j)arties.  The  ])riiicipal  officers 
of  a  court  arc  its  clerks  and  bailiffs,  whom  it  may  ordinarily  re- 
move at  pleasure ;  and  its  attorneys  at  law,  whom  it  may  disbar 
for  cause  after  notice  and  hearing.  A  court  may  punish  as  con- 
tempts all  conduct  in  its  presence  which  is  derogatory  to  its  dig- 
nity or  interru])ts  its  proceedings,  and  all  wilful  disobedience  to 
its  lawful  orders  and  decrees. 

Read:  Rob.  Am.  Jur.,  §  309; 
Cooley  on  Torts,  pp.  422-425. 

§  260.     Of  Civil  Actions. 

A  civil  action  is  the  pursuit  of  a  private  remedy  for  a  private 
wrong  in  a  civil  court.  It  includes  all  the  proceedings  involved 
in  the  institution,  judicial  investigation,  and  determination  of  a 
legal  controversy,  and  in  the  enforcement  of  the  judgment  of 
the  court  against  the  parties.  The  proceeding  by  which  it  is 
instituted  is  called  the  process.  The  nnttual  formal  allegations 
of  the  parties,  in  presenting  their  respective  claims,  are  called 
the  pleadings.  The  investigation  by  the  court  is  the  trial.  Its 
decision  is  the  judgment  or  decree.  The  proceedings  by  which 
the  judgment  is  enforced  is  the  execution.  All  these  proceedings, 
taken  together,  constitute  the  action;  and  though  varying  some- 
what in  form  in  the  dill'erent  species  of  civil  courts  are  sub- 
stantially the  same  in  whatever  court  th(>  action  may  be  brought. 


282  ELEMENTARY   LAW  §  251 

Rem.  Every  action  relates  to  some  subject-matter  out  of  which 
the  controversy  has  arisen.  This  may  be  a  wrongful  act  or  omis- 
sion, past,  present,  or  prospective ;  or  an  article  of  property ;  and 
the  judgment  in  the  action  may  concern  the  disposition  of  the 
property  alone,'  or  may  impose  some  personal  obligation  or  re- 
striction on  one  or  both  of  the  parties.  An  action  brought  for 
the  sole  purpose  of  disposing  of  an  article  of  property,  and  not 
affecting  other  rights  of  the  parties  to  the  action,  is  called  an 
action  in  rem.,  —  such  as  a  suit  in  admiralty  against  a  vessel,  or 
an  action  for  the  partition  of  land  between  its  acknowledged 
owners.  An  action  in  personam,  on  the  other  hand,  is  instituted 
to  affect  the  personal  or  property  rights  of  the  parties,  and  the 
judgment  therein  is  binding  upon  them  and  their  estates  until  it  is 
satisfied.    x\ll  actions  not  strictly  in  rem  are  actions  in  personam. 

Read  :  Andrews  on  American  Law,  §  644 ; 
Sliipman  on  Pleading,  §  1 ; 

Waples  on  Proceedings  in  Rem,  §§  1-41,  133-139; 
,„^  /  Foster's  First  Book  of  Practice,  pp.  1-43. 

§  251.     Of  the  Jurisdiction  of  Civil  Courts  over  Civil  Actions. 

The  jurisdiction  of  a  civil  court  over  a  civil  action  depends 
upon  its  jurisdiction  over  both  the  subject-matter  and  the  parties. 
Its  jurisdiction  over  the  subject-matter  is  fLxed  by  law,  and  can- 
not be  extended  or  limited  by  any  act  of  the  court  or  agreement 
of  the  parties.  Jurisdiction  over  the  parties  depends  upon  the 
proper  service  upon  them  of  legal  process,  or  their  voluntary 
submission  without  process  to  the  authority  of  the  court.  All 
the  proceedings  and  conditions  which  the  law  requires  to  bring 
a  controversy  within  the  jurisdiction  of  the  court  before  which  it  is 
instituted,  taken  together,  constitute  the  jurisdictional  facts ;  and 
if  any  of  these  are  wanting,  every  act  of  the  court  in  reference 
to  the  action,  except  to  refuse  to  entertain  it,  is  coram  non  judice 
and  void. 

Rem.  The  jurisdiction  of  a  civil  court  over  a  subject-matter  is 
fixed  by  law ;  sometimes  according  to  the  residence  of  the  parties ; 
sometimes  according  to  the  location  of  the  subject  matter ;  some- 
times according  to  its  character  as  real  or  personal;  sometimes 
according  to  its  value;  sometimes  according  to  the  form  of  the 
relief  desired.  Jurisdiction  over  the  parties  is  usually  conditioned 
upon  residence  and  notice.  Thus  civil  courts  generally  have  no 
compulsory  jurisdiction  over  the  parties  in  actions  in  personarrit 


§  252  COMMON   LAW  ACTIONS  283 

unless  such  parties  are  domiciled  within  the  territorial  jurisdic- 
tion of  the  court,  or  have  been  served  with  process  within  that 
territory.  In  actions  in  rem,  where  the  property  in  question  is 
seized  in  pursuance  of  proper  process,  the  parties  are  presumed 
to  be  sufficiently  within  the  jurisdiction  of  the  court  for  all  the 
purposes  of  the  suit,  without  residence  or  notice,  though  it  is 
customary  to  attempt  to  give  them  warning  of  the  seizure  through 
some  form  of  publication  under  the  direction  of  the  court. 

Read:  Rob.  Am.  Jur.,  §§  306-308; 
Maxwell  on  Pleading  and  Practice,  §§  18-27. 


SECTION  I 

OF  ACTIONS  IN  THE  COURTS  OF  COMMON  LAW 

§  252.     Of  the  Common  Law  Actions. 

The  ancient  courts  of  common  law  took  cognizance  of  no 
ordinary  civil  controversies  except  those  arising  from  (1)  The 
exclusion  from  land  of  its  rightful  freehold  possessor;  (2)  The 
withholding  of  personal  property  from  its  true  owner;  (3) 
The  forcible  injury  of  persons  or  property;  (4)  The  failure  to 
pay  a  definitely  ascertainable  debt ;  (5)  The  breach  of  a  contract 
under  seal.  In  A.  D.  1285  tlieir  jurisdiction  ivas  extended  by 
statute  to  controversies  arising  out  of  (1)  Injuries  committed 
by  negligence  or  fraud;  (2)  Wrongs  against  health  or  reputa- 
tion; (3)  The  conversion  of  personal  property  without  force; 
and  (4)  Breaches  of  contract  not  under  seal.  According  to  the 
customs  of  these  courts  each  of  these  controversies  had  its 
peculiar  form  of  action  regulating  its  process,  its  pleadings,  its 
trial,  its  judgment,  and  its  execution;  and  the  plaintiff  was 
required  to  designate  in  the  process,  by  certain  technical  words, 
what  form  of  action  he  intended  to  pursue.  This  designation 
bound  him  to  adhere  to  the  special  methods  peculiar  to  that 
form  of  action  in  all  his  subsequent  proceedings,  even  though  he 
thereby  lost  his  suit;  or  to  abandon  that  action  altogether  and 
begin  anew.  From  these  technical  words  the  form  of  action 
took  its  name.  Of  the  ordinary  forms  of  action,  from  time  to 
time  adopted  in  the  courts  of  common  law,  the  following  still 
survive:  (1)  Disseisin  or  Ejectment,  to  recover  the  })ossession 
of  real  property;    (2)   Repleoin  or  Detinue,  to  recover  the   pes- 


284  ELEMENTARY   LAW  §  253 

session  of  personal  property ;  (3)  Trespass,  to  recover  damages 
for  the  direct  forcible  injury  of  persons  or  property;  (4) 
Trespass  on  the  Case,  to  recover  damages  for  negligence  or  fraud, 
or  for  injuries  to  reputation,  or  for  other  wrongs  to  person  or 
property  by  indirect  force  resembling  in  their  consequences  the 
wrongs  inflicted  by  direct  force ;  (5)  Trover,  to  recover  damages 
for  the  conversion  of  personal  property;  (6)  Debt  or  Account, 
to  enforce  the  payment  of  a  definitely  ascertainable  debt; 
(7)  Coi'cnant-broken,  to  recover  damages  for  the  breach  of  a 
contract  under  seal ;  (8)  Assumpsit,  to  recover  damages  for  the 
breach  of  a  contract  not  under  seal. 

Rem:  The  technical  words  which  indicate  the  form  of  action 
usually  occur  in  the  original  writ  immediately  after  the  clause  of 
summons,  thus,  —  "then  and  tiiere  to  answer  to  .  .  .  in  a  plea  of 
trespass;  in  a  plea  of  assumpsit" ;  or  whatever  the  action  may 
be.  Then  follows  the  declaration,  beginning,  —  "whereupon  the 
plaintitf  declares  a7id  says,"  etc.  Variation  between  these  tech- 
nical words  and  the  cause  of  action  set  forth  in  the  declaration 
was  anciently  fatal  to  the  suit.  In  modern  times,  especially  in 
States  where  the  "New  Procedure"  has  been  introduced,  the 
attempt  has  been  made  to  substitute  one  general  form  of  action 
for  the  old  common  law  forms ;  but  many  of  their  peculiar  fea- 
tures, growing  out  of  the  nature  of  the  injury,  are  permanent  in 
the  law  and  still  control  the  progress  of  the  action. 

Read:  Barbour,  Rights  of  Persons  and  Property,  pp.  787-789; 
Walker,  American  Law,  §§  264,  265  ; 
Jaggard  on  Torts,  §§  6-9; 
1  Chitty  on  Pleading,  pp.  106-109; 
Stephen  on  Pleading,  §§  52-61; 
Perry  on  Pleading,  pp.  38,  39; 
Ni         Bliss  on  Code  Pleading,  §§  1-10. 

§  253.     Of  Actions:  Real,  Mixed,  and  Personal. 

The  ordinary  common  law  actions  are  frequently  grouped  into 
three  classes :  Real,  Mixed,  and  Personal.  A  real  action  is  one 
brought  to  recover  the  possession  of  land  by  a  person  who  has  a 
freehold  estate  therein.  A  mixed  action  is  one  brought  to  recover 
the  possession  of  land,  and  damages  for  its  dispossession,  by  a 
person  who  claims  the  right  to  its  possession.  A  personal  action 
is  one  brought  to  recover  personal  j^roperty  in  specie,  or  damages 
for  any  violation  of  a  pri\'ate  legal  right.     Personal  actions  are 


§  254  COMMON   LAW   ACTIONS  285 

further  grouped  into  two  classes :  Actions  ex  contractu,  based  on 
breaches  of  contract ;  Actions  ex  delicto,  arising  out  of  tort  as  dis- 
tinguished from  contract. 

Rem.  Real  actions  were  formerly  both  numerous  and  im- 
portant, but  have  now  practically  disappeared ;  the  mixed  action 
of  disseisin  or  ejectment  taking  their  place.  The  principal  real 
actions  were:  (1)  Writs  of  entry,  brought  by  an  alleged  disseisee 
to  recover  his  seisin;  (2)  Writs  of  Assize,  brought  to  recover  a 
possession  wrongfully  withheld ;  (3)  Writs  of  Right,  brought  to 
vindicate  a  title  in  fee  simple;  (4)  Writs  of  Formeihm,  brought 
to  vindicate  a  title  in  fee  tail ;  (5)  Writs  of  Dower,  brought  by  a 
widow  to  compel  the  heir  to  set  out  her  dower;  (G)  Writs  of 
Right  of  Dower,  brought  by  a  widow  to  compel  the  heir  to  correct 
an  error  in  the  assignment  of  her  dower ;  (7)  Writs  of  Admeasure- 
ment of  Dower,  brought  by  an  heir  against  the  widow  to  correct 
an  excessive  apportionment  of  dower.  Such  of  these  controver- 
sies as  cannot  now  be  determined  in  an  action  of  disseisin  are 
usually  adjusted  in  courts  of  equity  or  in  courts  of  probate. 

Read:  3  Bl.  Com.,  pp.  117,  118; 

Andrews,  American  Law,  §§  652,  653; 
Pollock  on  Torts,  pp.  14,  15; 
Chitty  on  Pleading,  pp.  109-111; 
Stephen  on  Pleading,  §§  65-74; 
Perry  on  Pleading,  pp.  40-48; 
Shipman  on  Pleading,  §§  2-5. 


§  254.     Of  Mixed  Actions:  Disseisin  or  Ejectment. 

The  action  of  disseisin  or  cjcrfnicnt  may  be  brought  for  the  re- 
covery of  any  real  property  upon  which  an  entry  can  be  made, 
and  of  which  a  sheriff  can  deliver  the  actual  possession ;  but  not 
to  recover  an  incorporeal  hereditament  or  a  personal  chattel.  It 
vxill  lie  in  any  case  of  wrongful  occupation  of  land  with  the  exclu- 
sion of  the  lawful  occupant,  whether  his  estate  be  personal  or 
real ;  and  against  any  person  who  wrongfully  withholds  the  pos- 
session of  land  from  the  lawful  tenant  under  a  claim  of  right.  It 
will  not  lie  for  a  simple  trespass ;  though  where  the  trespass  may 
produce  irreparable  injury  if  repeated  or  continued,  and  the  law- 
ful owner  is  in  doubt  whether  the  intruder  claims  a  title  to  the 
land  or  not,  he  may  treat  the  trespass  as  an  entry  and  bring  his 
action  of  ejectment.  In  this  action,  if  the  intruder  entered  under 
a  claim  of  right,  the  plaintiff  must  recover,  if  at  all,  by  the  strength 


286  ELEMENTARY   LAW  §  254 

of  his  oum  title,  not  by  the  weakness  of  the  title  of  the  defend- 
ant ;  for  possession  under  a  claim  of  title  is  good  against  all  the 
world  except  the  true  owner.  But  where  the  defendant  is  a  mere 
trespasser,  not  claiming  title,  proof  of  the  plaintiff's  peaceable 
possession  at  the  time  of  the  trespass  is  sufficient.  The  defendant 
cannot  set  up  an  equitable  title  in  himself,  nor  when  he  is  a  tres- 
passer can  he  claim  a  legal  title  in  a  third  person,  nor  his  own 
superior  title  if  the  plaintiff  is  liis  tenant  and  holds  under  the 
lease.  The  judgment,  if  in  favor  of  the  plaintiff,  awards  him  the 
possession  of  the  land ;  and  the  sheriff  under  the  execution  rein- 
states him  and  expels  the  intruder.  This  judgment  is  conclusive 
against  any  title  claimed  by  or  vested  in  the  defendant  at  the  date 
of  the  rendition  of  the  judgment ;  but  does  not  prevent  him  from 
acquiring  a  new  title  and  making  another  entry  on  the  land. 
The  damages  recovered  by  the  plaintiff  may  be  merely  nominal, 
or  may  be  commensurate  with  the  rents  and  profits  during  the 
dispossession.  If  nominal,  a  further  action  of  trespass  for  the 
mesne  profits  may  be  brought.  When  the  defendant  occupied  the 
land  under  a  reasonable  claim  of  right,  and  in  good  faith  made 
permanent  improvements  thereon,  the  laws  of  many  States  entitle 
him  to  compensation  for  the  improvements,  either  absolutely  or 
as  a  set-off  to  the  claim  for  rents  and  profits. 

Rem.  During  the  period  when  real  actions  were  employed  for 
the  recovery  of  land,  by  a  freehold  tenant,  the  action  of  ejectment 
was  devised  for  the  recovery  of  damages,  by  a  tenant  less  than 
freehold,  for  his  dispossession.  This  action  was  afterwards  ex- 
tended to  cover  all  cases  of  dispossession,  and  to  enable  any  lawful 
tenant  to  recover  the  possession  of  his  land  as  well  as  damages 
for  the  intrusion  of  the  defendant.  In  making  this  extension 
certain  legal  fictions  were  introduced,  in  order  to  adapt  it  to  all 
cases  of  intrusion,  which  required  a  circuitous  proceeding  in  the 
name  of  a  fictitious  tenant;  but  these  fictions  soon  became  mere 
formal  allegations  which  the  defendant  was  not  permitted  to 
deny.  This  extension  and  simplification  of  the  action  of  eject- 
ment has  rendered  a  resort  to  real  actions  in  cases  of  disseisin 
unnecessary. 

Read:  3  Bl.  Com.,  pp.  178-207; 

Chitty  on  Pleading,  pp.  209-220; 

Stephen  on  Pleading,  §  85; 

Perry  on  Pleading,  pp.  93-100; 

Shipman  on  Pleading,  §§  22-24; 

Boone,  Real  Property,  §§  456-494. 


§§  255,  256  COMMON   LAW  ACTIONS  287 

§  256.     Of  Actions  Ex  Contractu:  Assumpsit. 

The  action  of  assumpsit  is  brought  to  recover  damages  for  the 
breach  of  a  contract  not  under  seal.  Of  this  action  there  are  two 
forms :  General  Assumpsit  and  Special  Assumpsit.  General  as- 
sumpsit is  the  form  employed  in  all  actions  on  implied  or  quasi 
contracts,  and  on  express  contracts  which  have  been  so  far  per- 
formed that  nothing  remains  but  to  pay  money.  Special  assump- 
sit is  the  form  required  in  actions  for  damages  for  the  partial  or 
total  non-performance  of  express  contracts,  unless  the  sole  claim 
of  the  plaintiff  is  for  a  definite  and  already  ascertained  sum  of 
money;  in  which  case  a  form  of  general  assumpsit  known  as 
indebitatus  assumpsit  is  the  proper  remedy. 

Rem.  The  action  of  assumpsit  is  of  an  equitable  character, 
and  is  intended  to  afford  relief  in  every  case  of  failure  to  perform 
a  legal  obligation  which  grows  out  of  a  valid  promise,  whether 
the  promise  be  written  or  oral,  express  or  implied,  a  true  contract 
or  a  quasi  contract,  provided  it  is  not  created  by  a  sealed  instru- 
ment. The  action  takes  its  name  from  the  Latin  verb  by  which 
the  ancient  pleadings  described  the  promise  of  the  defendant.  It 
is  the  action  most  frequently  in  use  in  the  common  law  courts. 

Read:  3  BI.  Com.,  pp.  157-166; 
Andrews,  American  Law,  §  670; 
Chitty  on  Pleading,  pp.  110-121; 
Stephen  on  Pleading,  §  82; 
Perry  on  Pleading,  pp.  82-89; 
Shipman  on  Pleading,  §§  6-9. 


§  266.     Of  Actions  Ex  Contractu:  Debt. 

The  action  of  debt  is  brought  to  recover  a  specific  sum  of  money 
due  from  the  defendant  to  the  plaintiff.  The  obligation  to  pay 
the  money  may  have  arisen  out  of  any  species  of  contract ;  or  out 
of  a  judgment  or  an  award  of  money ;  or  out  of  statutes  imposing 
money  penalties  or  prescribing  money  rewards;  or  out  of  public 
assessments  or  taxation.  Of  tliis  action  there  are  two  forms :  the 
debet  and  the  detinet.  The  debet  is  employed  when  the  defendant 
personally  owes  the  flebt.  The  detinet  is  used  when  the  defendant 
owes  the  debt  in  some  official  or  representative  capacity,  such  as 
executor  or  the  like.  As  this  action  contemplates  a  specific  sum 
as  the  subject-matter  in  controversy  it  will  not  lie  for  any  portion 
or  instalment  of  an  entire  indebtedness^  unless  such  portion  can 


288  ELEMENTARY  LAW  §  257 

be  regarded  as  a  separate  and  independent  debt,  or  unless  its 
payment  is  secured  by  a  money  penalty  expressly  attached  to  the 
failure  to  pay  each  portion  or  instalment. 

Rem.  Debt  is  a  concurrent  action  with  general  assumpsit  on  all 
contracts  not  under  seal  from  which  an  obligation  to  pay  a  specific 
sum  of  money  has  arisen ;  and  with  covenant-broken  on  all  con- 
tracts under  seal  which  create  a  similar  obligation.  On  the 
judgment  of  a  court  whose  records  import  absolute  verity,  and 
are  conclusive  on  all  parties,  it  is  the  only  ordinary  remedy  by 
which  the  damages  and  costs  awarded  by  the  judgment  can  be 
recovered  in  a  further  action. 

Read:  3  Bl.  Com.,  pp.  154,  155; 
Andrews,  American  Law,  §  666; 
Chitty  on  Pleading,  pp.  121-129; 
Stephen  on  Pleading,  §§  75,  76; 
Perry  on  Pleading,  pp.  48-55; 
Shipman  on  Pleading,  §§  11-13. 


§  257.     Of  Actions  Ex  Contractu:  Covenant-Broken. 

The  action  of  covenant-broken  is  brought  to  recover  damages 
for  the  breach  of  a  contract  under  seal.  The  terms  of  the  contract 
may  be  explicitly  set  forth  in  the  sealed  instrument,  or  may  be 
presumed  by  law  from  the  nature  of  the  transaction  represented 
by  it  or  the  technical  language  it  contains.  The  contract  may 
stijndate  merely  for  the  performance  or  non-performance  of  a  cer- 
tain act,  or  it  may  add  to  this  stipulation  an  agreement  to  pay  a 
definite  money  penalty  in  case  the  contract  should  be  broken. 
The  parties  directly  hcnind  by  a  covenant  are  those  who  have 
signed  and  sealed  the  instrument ;  others,  like  the  grantees  in  a 
deed-poll,  may  be  bmmd  indirectly  through  the  promise  which 
the  law  implies  from  their  acceptance  of  its  benefits.  An  action 
of  covenant-broken,  being  founded  upon  the  breach  of  the  express 
contract  under  seal,  can  be  brought  only  against  those  who  are 
directly  bound  thereby ;  the  remedy  against  those  whose  obliga- 
tion rests  on  their  implied  promise  is  assumpsit  or,  in  proper 
cases,  debt. 

Rem.  Debt  is  also  a  concurrent  remedy  with  covenant-broken 
when  the  contract  is  to  pay  money,  or  on  the  clause  providing  for 
a  money  penalty ;  but  when  the  purpose  of  the  action  is  to  recover 


§  258  COMMON   LAW  ACTIONS  289 

unliquidated  damages  for  the  breach  of  the  agreement,  covenant- 
broken  alone  will  lie. 

Read:  3  Bl.  Com.,  pp.  155-157; 
Chitty  on  Pleading,  pp.  129-135; 
Perry  on  Pleading,  pp.  57-60; 
Shipman  on  Pleading,  §  10. 


§  258.     Of  Actions  Ex  Contractu:  Account. 

The  action  of  account  is  brought  to  compel  the  defendant  tocom- 
pute  with  the  plaintiff  their  mutual  accounts,  and  to  pay  to  him 
any  balance  that  may  be  found  due.  This  action  will  lie  only 
when  some  relation  exists  between  the  parties  which  obliges  the 
defendant  to  inform  the  plaintiff  of  the  state  of  affairs,  and  de- 
liver to  him  the  property  or  pay  him  the  amount  of  money  which 
may  legally  belong  to  him.  Such  relations  subsist  between  a 
principal  and  agent;  a  guardian  and  ward;  a  trustee  and  his 
cestui  que  trust;  one  co-partner  and  another;  one  co-tenant  and 
another;  and  between  merchants  who  customarily  exchange 
commodities  and  credit  with  each  other.  In  this  action  the 
first  question  to  be  .settled  is  the  existence  of  the  alleged  rela- 
tion; and  if  this  is  proved,  to  the  sati.sfaction  of  the  court,  it 
renders  against  the  defendant  a  judgment  quod  computet,  —  that 
he  do  account.  The  account  is  then  taken  by  the  parties  in  the 
presence  of  the  court  or  before  duly  appointed  auditors,  and 
the  balance,  if  any,  in  his  favor  is  awarded  to  the  })laintiff  by  a 
second  judgment,  on  which  an  execution  i.ssues  to  procure  its 
payment. 

Rem.  Resort  to  this  action  is  necessary  only  when  the  plaintiff 
does  not  know,  or  cannot  prove,  the  amount  of  the  balance  due 
him.  In  other  cases,  his  remedy  is  in  debt  or  assumpsit.  Courts 
of  common  law  have  no  jurisdiction  where  there  are  more  than 
two  parties  to  the  mutual  relation.  Recourse  must  then  be  had 
to  a  court  of  e(|uity;  before  which  for  this  and  other  reasons 
most  actions  of  account  are  now  brought. 

Read:  3  Bl.  Com.,  p.  162; 

Cliitty  on  Pleading,  pp.  45-48,  371,  515; 

Stephen  on  Pleading,  §  77; 

Perry  on  Pleading,  p.  (iO; 

Sliijjnian  on  Pleading,  §  14; 

Ma.xwell  on  Pleading  and  Practice,  §§  880-883. 

1!) 


290  ELEMENTARY   LAW  §  259 

§  269.     Of  Actions  Ex  Delicto:  Trespass. 

The  action  of  trespass  is  brought  to  recover  damages  for  an  in- 
jury produced  by  the  unlawful  exercise  of  direct  force,  express  or 
implied.  It  is  of  various  forms:  (1)  Trespass  quare  claus^im, 
for  a  forcible  intrusion  upon  land ;  (2)  Trespass  de  bonis,  for  the 
forcible  removal  or  destruction  of  personal  property;  (3)  Tres- 
pass vi  et  armis,  for  any  forcible  injury  to  person  or  property, 
when  not  involving  dispossession ;  (4)  Trespass  per  quod,  for 
the  abduction,  criminal  conversation,  or  physical  injury  of  a  wife, 
for  the  abduction  of  a  child  or  servant,  and  for  the  battery  or  se- 
duction of  a  servant.  All  persons  who  instigate  or  unite  in  the 
forcible  act  are  liable  for  the  trespass,  and  may  be  sued  jointly  or 
separately  at  the  option  of  the  plaintiff ;  though  when  he  has  re- 
covered full  satisfaction  from  any  one  of  the  wrongdoers  his 
rights  against  the  others  are  extinguished.  The  damages  awarded 
in  this  action  are  generally  measured  by  the  actual  amount  of 
loss,  but  in  trespass  for  injuries  to  personal  or  family  rights,  and 
sometimes  for  other  wanton  and  aggravated  wrongs,  the  law 
permits  the  court  to  give  the  plaintiff  punitive  damages. 

Rem.  An  action  for  trespass  to  property  must  be  brought  by 
the  person  in  whom  the  possession  of  the  property  resided  at  the 
time  of  the  trespass.  This  may  be  the  owner  or  bailee  in  the  case 
of  a  chattel,  or  the  owner,  tenant,  or  other  occupant  in  the 
case  of  corporeal  real  property.  Even  the  naked  possession  of  an 
intruder,  if  peaceable,  is  sufficient  to  maintain  this  action  against 
one  who  has  no  right  to  the  possession.  Where  no  one  is  in  the 
occupation  of  land,  its  true  owner  has  constructive  possession  by 
virtue  of  his  title,  and  can  sue  in  trespass.  If  no  actual  posses- 
sion of  a  chattel  exists,  the  constructive  possession  resides  in  the 
person  who  has  the  right  to  take  immediate  possession.  The 
cusiodij  of  an  agent  or  servant  is  the  possession  of  the  master, 
and  the  master  must  therefore  institute  the  suit. 

Read:  3  Bl.  Com.,  pp.  120-123,  138,  142,  151,  211; 
Andrews,  American  Law,  §  673; 
Addison  on  Torts,  §§  42,  G4-74,  83,  98-100,  113,  150-156,  396-400, 

532-536,  621,  624,  631-633,  636,  638,  649; 
Pollock  on  Torts,  pp.  269-285; 
Jaggard  on  Torts,  §§  124-140,  208-214,  217; 
Chitty  on  Pleading,  pp.  140-148,  186-209; 
Stephen  on  Pleading,  §  80; 
Perry  on  Pleading,  pp.  63-73; 
Shipman  on  Pleading,  §  15. 


§  260  COMMON  LAW  ACTIONS  291 

§  260.     Of  Actions  Ex  Delicto:  Case. 

The  action  of  case,  or  trespass  on  the  case,  is  brought  to  recover 
damages  for  any  violation  of  a  legal  right  for  which  the  courts  of 
common  law  can  give  redress,  and  for  which  no  other  common 
law  remedy  has  been  provided.  It  lies  for  all  torts  to  person  or 
property  without  direct  force,  actual  or  imphed ;  for  all  injuries 
to  person  or  property  by  indirect  force,  or  where  direct  force  has 
created  conditions  in  which  secondary  or  intermediate  causes 
operate  to  produce  harmful  results;  for  all  disturbances  of  in- 
corporeal rights ;  for  loss  occasioned  to  reversioners  by  injuries 
inflicted  upon  property  while  in  the  possession  of  particular  ten- 
ants or  bailees,  and  for  which  the  possessors  could  maintain  an 
action  of  trespass;  for  all  wrongs  arising  from  neglect  of  duty 
or  abuse  of  authority,  and  not  consisting  in  mere  breach  of  con- 
tract. It  is  the  remedy  for  nuisance ;  hbel;  slander;  maHcious 
prosecution ;  waste ;  disturbance ;  the  diversion  or  pollution  of 
watercourses ;  the  breach  of  duty  by  carriers  and  other  bailees ; 
the  usurpation  by  co-tenants  of  excessive  powers  over  joint  prop- 
erty ;  the  infringement  of  patents,  copyrights,  and  trademarks ; 
the  malpractice  of  physicians  and  attorneys ;  the  retainer  of  ser- 
vants ;  and  every  form  of  conspiracy  and  fraud,  except  where 
fraud  is  the  legal  equivalent  of  direct  force.  In  short,  it  is  a  uni- 
versal remedy  whose  possibilities  have  never  yet  been  exhausted, 
and  whose  flexibility  has  enabled  the  courts  of  common  law  to 
keep  pace  with  the  advancing  needs  of  society,  so  far  as  their  for- 
mal limitations  will  permit. 

Rem.  This  action  is  a  concurrent  remedy  with  assumpsit  where 
the  tort  arises  out  of  a  breach  of  contract ;  and  with  trespass 
when  a  forcible  act  causing  direct  injury  is  the  result  of  careless- 
ness ;  the  assumpsit  lying  on  the  breach  of  contract,  and  the  tres- 
pass on  the  forcible  act ;  while  the  negligence  in  both  instances 
is  the  foundation  for  the  trespass  on  the  case.  The  action  must 
be  brought  by  the  person  who  sustains  the  injury,  and  against  the 
person  who  causes  it.  The  dnmagcs  are  mcasurefl  by  the  injury 
inflicted,  and  in  many  cases  of  gross  and  wanton  wrong  may  be 
increased  to  any  amount  not  palpably  unjust. 

Read:  3  Bl.  Com.,  pp.  122-127.  1.53,  16.5,  166,  220-237; 
Andrews,  American  Law,  §§  669,  677; 
Addison  on  Torts,  §§  20.5-211,  222-226,  401,  810-817; 
Coolcy  on  Torts,  pp.  90-U6; 


292  ELEMENTARY   LAW  §  261 

Pollock  on  Torts,  pp.  211-224,  292-294,  456,  467,  487-491,  644- 

668,  682-685; 
Chitty  on  Pleading,  pp.  148-164; 
Stephen  on  Pleading,  §  81 ; 
Perry  on  Pleading,  pp.  77-82; 
Shipman  on  Pleading,  §§  17-19. 


§  261.     Of  Actions  Ex  Delicto:  Trover. 

The  actioji  of  trover  is  brought  to  recover  damages  for  the  con- 
version of  personal  property.  Conversion  is  an  injury  both  to 
possession  and  ovi'nership;  and  hence  no  one  can  sustain  this 
action  unless  at  the  date  of  the  alleged  conversion  he  was  either  a 
general  or  special  owner  of  the  property,  and  also  had  its  actual 
possession  or  a  right  to  its  immediate  possession.  All  persons 
who  by  act  or  procurement  engage  in  the  conversion  are  jointly 
and  severally  liable  for  the  injury  like  other  joint  tort-feasors. 
Unless  the  plaintiff  is  prepared  to  prove  an  original  wrongful 
taking,  or  a  subsequent  act  of  conversion,  he  should  make  de- 
7nand  upon  the  defendant  for  the  surrender  of  the  property  before 
the  action  is  commenced;  and  if  this  demand  is  unconditional, 
and  is  unconditionally  refused,  the  evidence  of  conversion  is 
complete.  If  the  refusal  is  equivocal  the  plaintiff  may  be  com- 
pelled to  seek  his  remedy  in  an  action  of  replevin,  or  detinue,  or 
trespass  on  the  case.  The  damages  in  trover  are  usually  measured 
by  the  value  of  the  property  at  the  date  of  the  conversion  with 
interest  to  the  date  of  judgment ;  but  this  amount  may  be  dimin- 
ished if  the  property  has  been  returned  to  the  plaintiff  and  ac- 
cepted by  him,  or  increased  if  the  conversion  has  caused  him  any 
special  loss.  If  the  defendant  still  retains  the  property  he  be- 
comes its  owner  when  he  satisfies  the  judgment.  Trover  is  an 
alternate  remedy  with  trespass  for  a  tortious  taking,  and  a  con- 
current remedy  with  case  and  assumpsit  for  a  conversion  by 
bailees  and  other  persons  whose  special  ownership  and  possession 
is  derived  by  contract  from  the  general  owner. 

Rem.  An  action  of  trover  may  be  brought  by  a  general  owner 
where  there  is  no  rightful  possession  in  another  person ;  or  by  a 
bailee  into  whose  possession  the  property  has  been  delivered  by 
the  general  owner;  or  by  a  finder  who  holds  the  property  in 
trust  for  the  owner ;  but  not  by  a  servant  or  a  trespasser  or  any 
other  tortious  holder.    But  a  disseisee  who  has  regained  his  seisin 


§  262  COMMON  LAW  ACTIONS  293 

may  recover  in  this  action  the  value  of  the  timber  taken  from  the 
land  during  his  dispossession,  on  the  ground  that  from  the  restora- 
tion of  his  seisin  the  law  presumes  that  he  has  never  been  dis- 
seised. A  co-tenant  can  maintain  this  action  against  another 
co-tenant  for  the  sale  or  destruction  of  the  common  property,  or 
against  a  stranger  for  the  conversion  of  his  ali(|uot  share.  Wiu-n 
a  general  owner  has  a  remedy  against  a  bailee  or  other  rightful 
possessor,  for  injury  to  his  right  of  ownership,  it  is  in  case  and 
not  in  trover. 

Read:  3  Bl.  Com.,  p.  152; 

Andrews,  American  Law,  §  671 ; 

Addison  on  Torts,  §§  532,  543-545,  547-553; 

Jaggard  on  Torts,  §  231 ; 

Chitty  on  Pleading,  pp.  164-181 ; 

Stephen  on  Pleading,  §  83; 

Perry  on  Pleading,  pp.  90-93; 

Shipman  on  Pleading,  §  16. 


S  262.     Of  Actions  Ex  Delicto:  Replevin. 

The  action  of  replevin  is  brought  to  recover  the  possession  of 
personal  property,  with  or  without  damages  for  its  unlawful  de- 
tention. The  plaintiff  in  replevin  must  have  a  general  or  spctial 
ownership  in  the  property,  and  must  have  a  right  to  its  immediate 
possession  as  against  the  defendant  at  the  date  of  the  commence- 
ment of  the  suit;  and  the  defendant,  at  the  same  date,  nmst  be 
the  person  by  whom  the  property  is  unlawfully  detained.  Hence 
one  co-tenant  cannot  sue  another  in  this  action  ;  nor  a  reversioner 
maintain  it  against  a  particular  tenant  or  bailee;  nor  any  owner 
against  an  officer  holding  it  under  legal  process ;  nor  a  defendant 
in  replevin  against  the  plaiijtifl'  who  has  previously  replevied  it. 
To  fi.x  the  date  of  the  unlawful  detention,  as  well  as  to  demon- 
strate the  fact  of  such  detention,  a  demand  for  the  return  of  the 
property  is  frequently  advisable  before  the  suit  in  replevin  is  com- 
menced. The  damages  in  this  action  are  measured,  where  the 
property  is  replevied,  by  the  loss  caused  by  its  detention ;  where 
the  property  is  not  replevied,  by  the  value  of  the  property  at  the 
date  when  the  detention  began  with  interest  to  the  date  t)f  judg- 
ment, and  such  other  compensation  as  the  circumstances  atti-iui- 
ing  the  detention  may  re(|uir(>. 

Rem.  This  action  was  originally  intended  for  the  relief  of 
persons  whose  goods  had  been  taken  by  distress,  where  the  dis- 


294  ELEMENTARY   LAW  §  263 

trainor  refused  to  accept  security  and  return  the  goods.  The 
distrainee  could  then  obtain  a  writ,  in  pursuance  of  which  the 
sheriff  restored  to  him  the  goods  if  he  could  find  them,  and  took 
from  him  a  bond  or  other  assurance  that  he  would  prosecute  the 
suit  to  judgment,  and  if  defeated  would  return  the  goods  to  the 
distrainor.  Upon  the  trial  the  distrainor  either  denied  the  taking, 
or  asserted  title  in  himself,  or  made  avowry  or  cognizance  ad- 
mitting the  taking  and  attempting  to  justify  it.  If  the  distrainee 
prevailed  he  retained  the  goods  and  recovered  damages  for  the 
unlawful  taking  and  detention.  If  the  distrainor  prevailed  the 
distrainee  was  ordered  to  return  the  goods  to  him  and  pay  him 
damages  for  replevying  them ;  and  unless  he  did  so  the  bond  or 
other  assurance  was  enforced  in  his  favor.  The  completeness 
and  convenience  of  this  remedy,  for  the  immediate  recovery  of 
personal  property  t??  specie,  has  led  to  its  extension,  in  many 
States,  to  all  cases  where  such  property  is  unlawfully  withheld, 
and  to  the  regulation  of  its  details  by  local  statutes. 

Read:  3  Bl.  Com.,  pp.  145-151; 
Andrews,  American  Law,  §  672; 
Addison  on  Torts,  §§  539-541; 
Chitty  on  Pleading,  pp.  181-186; 
Stephen  on  Pleading,  §  84; 
Perry  on  Pleading,  pp.  73-77; 
Shipman  on  Pleading,  §  21. 


§  263.     Of  Actions  Ex  Delicto:  Detinue. 

The  action  of  detinue  is  brought  to  recover  the  possession  of  per- 
sonal property,  with  damages  for  its  detention,  in  cases  where 
replevin  does  not  lie.  The  plaintiff  must  have  a  general  or  special 
ownership  in  the  property,  and  a  right  to  its  immediate  possession 
at  the  time  when  the  demand  for  its  return  is  made.  The  judg- 
ment for  the  plaintiff  orders  the  restoration  of  the  property  to  him, 
and  if  this  is  impossible  requires  the  payment  to  him  of  its  value 
with  other  items  of  loss  occasioned  by  its  detention ;  and  an 
execution  issues  in  serving  which  the  sheriff  may  employ  any 
necessary  force  in  seizing  the  property  and  delivering  it  to  the 
plaintiff. 

Rem.  This  is  a  very  ancient  action,  and  resembles  debt,  out  of 
which  it  grew,  in  the  necessity  for  a  demand  upon  the  defendant 
for  the  return  of  the  property  before  the  suit  is  commenced,  unless 
he  was  the  original  wrongful  taker.  It  also  differs  from  replevin 
in  that  the  property  is  recovered,  if  at  all,  at  the  end  and  not  at 


§  264  COMMON  LAW  ACTIONS  295 

the  beginning  of  the  suit.  Where  the  action  of  replevin  has  been 
extended  beyond  its  former  sphere,  the  action  of  detinue  is  corre- 
spondingly restricted,  and  in  some  of  our  States  seems  to  be 
comparatively  unknown.  In  others,  it  serves  chiefly  as  a  remedy 
for  the  recovery  of  goods  entrusted  to  a  bailee  or  conditional 
vendee  who  refuses  to  return  them  according  to  his  contract. 

Read:  3  Bl.  Com.,  p.  151; 

Addison  on  Torts,  §§  76,  17', 
Chitty  on  Pleading,  pp.  136-140; 
Perry  on  Pleading,  pp.  55-57; 
Shipman  on  Pleading,  §  20. 


§  264.     Of  Extraordinary  Actions:  Prerogative  Writs. 

Besides  the  ordinary  common  law  actions  just  described  our 
courts  of  common  law  now  take  cognizance  of  several  classes 
of  actions  known  respectively  as  (1)  Extraordinary  Actions; 
(2)  Auxiliary  Actions;  and  (3)  Statutory  Actions.  Extraor- 
dinary actions  are  intended  to  provide  a  remedy  for  wrongs 
inflicted  by  the  actions  or  omissions  of  governmental  agencies, 
or  of  persons  upon  whom  some  public  duty  is  imposed,  in  cases 
where  the  ordinary  common  law  actions  would  give  no  adequate 
relief.  Auxiliary  actions  arc  proceedings  intended  to  correct  or 
carry  into  effect  some  previous  or  concurrent  judicial  action,  and 
thus  practically  complete  the  legal  remedy.  Statvtory  actions 
are  proceedings  instituted  under  special  statutes,  and  by  them 
placed  under  the  jurisdiction  of  the  courts  of  common  law. 
The  extraordinary  actions  are  now  fire  in  nu^nber:  (1)  Man- 
damus; (2)  Procedendo;  (3)  Prohibition;  (4)  Quo  Warranto; 
(5)  Habeas  Corpus.  These  are  in  every  case  emergency  actions, 
designed  to  give  immediate  as  well  as  adequate  relief,  and  to 
this  end  their  methods  of  procedure  are  adapted. 

Rem.  The  extraordinary  actions  are  also  called  preroga- 
tive writs,  because  they  were  once  direct  interferences  by  the 
sovereign,  in  the  interest  of  justice,  by  virtue  of  his  royal  preroga- 
tive; but  were  long  ago  entrusted  to  the  common  law  courts, 
as  proceedings  within  their  regular  jurisdiction. 

Read:  Andrews,  American  Law,  §  710; 
Clark,  Elementary  Law,  §  246; 
Perry  on  Pleading,  p.  102. 


296  ELEMENTARY   LAW  §  265 

§  266.     Of  Extraordinary  Actions:  Mandamus. 

A  writ  of  mandamus  is  a  mandate  issuing  out  of  a  court  of 
superior  jurisdiction,  and  directed  to  some  inferior  court,  or 
public  officer  or  corporation,  or  other  person  over  whom  the 
superior  court  has  legal  authority,  requiring  such  inferior 
court,  officer,  corporation,  or  person  to  perform  some  par- 
ticular act  specified  in  the  mandate.  The  act  required  to  be 
done  must  be  one  which  the  respondent  is  able  to  perform; 
must  be  ministerial  and  not  judicial  in  its  character;  must  be 
obligatory,  not  discretionary;  transitory,  not  permanent;  defi- 
nite, not  ambiguous ;  and  clearly  and  precisely  set  forth  in  the 
mandate.  The  right  of  the  petitioner  to  have  the  act  performed 
must  be  self-evident  or  fully  demonstrated,  and  it  must  be  ap- 
parent that  no  ordinary  remedy  will  protect  his  right.  In  com- 
mencing this  action  the  petitioner,  called  also  the  relator,  applies 
in  writing  to  the  court  in  the  name  of  the  State,  describing  the 
circumstances  which  entitle  him  to  the  writ,  and  praying  that 
a  mandate  issue  directing  the  respondent  to  perform  the  desired 
act,  or  show  cause  why  he  refuses  so  to  do.  If  the  court  deems 
the  facts  alleged  to  be  sufficient  the  mandate  issues,  and  is 
known  as  the  alternative  writ.  In  his  answer  the  respondent 
must  either  assert  that  he  has  performed  the  act,  or  give  his 
reasons  for  its  non-performance.  If  he  makes  no  answer,  or 
the  court  finds  his  reasons  for  his  failure  to  perform  it  to  be 
inadequate,  another  mandate  issues,  called  the  peremptory  xvrit; 
his  disobedience  to  which  will  be  a  contempt  of  court  subject- 
ing him  to  fine  and  imprisonment.  In  cases  where  the  duty  is 
clear,  and  no  excuse  for  its  non-performance  is  possible,  the 
peremptory  writ  may  be  awarded  at  the  outset. 

Rem.  A  mandamus  cannot  issue  against  coequal  and  co- 
ordinate branches  of  the  government;  nor  can  it  create  new 
rights  nor  correct  nor  compensate  an  injury  already  past,  but 
can  only  prevent  a  future  wrong  against  existing  rights.  While 
it  is  not  a  writ  of  right,  the  courts  never  withhold  it  where  justice 
requires  its  use;  and  by  its  means  all  public  functionaries,  cor- 
poration officers,  and  other  individuals  who  are  within  the 
jurisdiction  of  the  court  can  be  compelled  to  discharge  the  pub- 
lic duties  imposed  upon  them  by  the  law.  In  most  instances, 
before  instituting  this  proceeding,  the  relator  is  required  to 
make  a  formal  demand  upon  the  respondent  for  the  performance 


§§  266,  267  COMMON  LAW  ACTIONS  297 

of  the  duty,  unless  it  is  apparent  that  his  past  neglect  has  been 
intentional.  In  many  States  the  details  of  this  action  are  regu- 
lated by  statutes. 

Read:  3  Bl.  Com.,  pp.  110,  111,  264,  265; 
High,  Ex.  Rem.,  chaps,  i-xii; 
Perry  on  Pleading,  pp.  102,  103; 
Wood  on  Mandamus,  etc.,  pp.  1-99; 
Spelling  on  Injunctions,  etc.,  §§  1362-1622. 

§  266.     Of  Extraordinary  Actions:  Procedendo. 

A  writ  of  procedendo  is  a  mandate  issuing  out  of  a  court  of 
suj^erior  jurisdiction,  and  directed  to  an  inferior  court  com- 
manding it  to  proccctl  with  the  hearing  and  decision  of  a  cause 
now  pending  before  it,  but  whoso  progress  is  being  unjustly 
delayed.  In  many  respects  it  resembles  a  mandamus,  by  which 
in  modern  practice  it  is  now  generally  superseded. 

Rem.  The  principal  form  of  procedendo  now  in  use  is  that 
attached  to  a  judgment  of  a  higher  court  on  an  appeal  or  writ 
of  error  from  a  lower  court,  direi'ting  the  lower  court  to  re- 
sume its  proceedings  in  conformity  with  the  judgment.  This 
procedendo  issues  as  a  matter  of  course  upon  the  decision  of  the 
higher  court.  The  ancicMit  form  was  granted  on  a  motion  or 
petition  .setting  up  the  necessary  facts,  and  giving  the  inferior 
court  an  oj^portunity  to  show  cause  why  the  case  should  not 
proceed;  failing  which,  the  order  to  proceed  was  made  peremp- 
tory and  its  di.sobedience  punished  as  a  contempt. 

Read:  3  Bl.  Com.,  p.  109; 
Perry  on  Pleading,  p.  103. 

§  267.     Of  Extraordinary  Actions:  Prohibition. 

A  icrit  of  prohihitim  is  a  mandate  issuing  out  of  a  court  of 
superior  jurisdiction,  and  directed  to  a  court  or  judicial  otticer 
of  inferior  jurisdiction  before  whom  a  suit  is  pending,  com- 
manding him  to  desist  from  furtluT  action  in  the  suit  becau.se 
of  his  want  of  jurisdiction,  or  in  coiKhicting  it  to  keep  within 
his  jurisdiction.  Upon  a  proper  occasion  this  writ  is  allowed 
as  a  matter  of  rifjht.  To  obtain  it  the  petitioner  files  a  miyqcstiim 
in  the  superior  court,  reciting  all  the  necessary  facts;  and  if 
the  facts  are  of  record  in  the  court  below  he  also  presents  a 
certified  copy  of  the  record.  ( )n  this  suggestion  a  rule  is  granted 
against   the   respondent    to   show   cau.se   why   the   writ    of   pro- 


598  ELEMENTARY   LAW  §  268 

hibition  should  not  be  allowed.  This  rule  stays  the  pro- 
ceedings in  the  inferior  court,  and  then  after  such  hearing  as 
the  local  law  requires  the  writ  is  finally  granted  or  refused. 
Disobedience  to  the  writ  is  a  contempt  of  court  for  which  all 
parties  concerned  in  it  may  be  punished. 

Rem.  A  court  may  exceed  its  jurisdiction  either  by  taking 
cognizance  of  a  case  over  which  it  has  no  authority  whatever, 
or  by  proceeding  in  a  case  within  its  jurisdiction  in  an  unlawful 
manner.  To  prevent  these  evils  the  writ  of  prohibition  was 
intended,  as  also  to  stay  the  operations  of  judicial  officers  who 
usurp  an  authority  which  they  do  not  possess.  But  it  cannot  be 
employed  to  control  the  discretion  or  judgment  of  a  court  upon 
matters  within  its  proper  sphere  of  action ;  nor  to  prevent  it 
from  deciding  a  cause  unjustly  or  from  enforcing  its  own  deci- 
sions. Nor  will  it  lie  against  the  legislature  or  the  governor  of 
a  State ;  nor  to  test  the  validity  of  past  official  acts ;  nor  to  try 
the  title  of  an  officer  de  facto  to  his  office ;  nor  in  any  case  where 
an  adequate  ordinary  remedy  exists. 

Read:  3  Bl.  Com.,  pp.  112-114; 
High,  Ex.  Rem.,  ch.  xxi; 
Perry  on  Pleading,  pp.  103,  104; 
Wood  on  Mandamus,  etc.,  pp.  99-110; 
Spelling  on  Injunctions,  etc.,  §§  1716-1744. 


8.     Of  Extraordinary  Actions:  Quo  Warranto. 

The  writ  of  quo  warranto  is  a  mandate  issued  by  a  court  of 
competent  jurisdiction,  directing  the  holder  of  a  franchise  or 
a  public  office  to  appear  before  it  and  show  by  what  authority 
he  holds  them,  in  order  that  his  right  thereto  may  be  deter- 
mined. When  employed  to  try  the  title  to  an  office  the  relator 
must  himself  be  a  claimant  of  the  same  office,  so  that  the  ad- 
verse rights  of  all  the  claimants  can  be  investigated;  and  must 
prevail,  if  at  all,  by  the  strength  of  his  own  title  and  not  by 
the  weakness  of  that  of  the  respondent.  Upon  him,  therefore, 
rests  the  burden  of  proving  the  usurpation  of  the  respondent  as 
well  as  his  own  right.  A  judgment  in  his  favor  places  him  in 
lawful  possession  of  the  office  with  a  right  to  its  emoluments, 
and  if  the  usurper  persists  in  his  intrusion  he  may  be  punished 
for  contempt.  Where  the  law  requires  the  relator  to  be  in- 
stalled into  the  office  by  some  superior  authority,  who  refuses 
to  perform  the  proper  ceremonies,  he  may  be  compelled  to  do 


§  269  COMMON  LAW  ACTIONS  299 

so  by  mandamus.  The  usurpation  of  a  franchise  may  consist 
either  in  its  exercise  without  original  authority,  or  in  its  exer- 
cise after  it  has  been  forfeited  by  non-user  or  abuse.  A  quo 
warranto  may  issue  for  such  a  usurpation  at  the  instance  of 
the  State,  and  in  this  proceeding  the  respondent  must  justify 
his  action,  or  a  judgment  of  ouster  will  be  rendered  against 
him.  This  is  the  remedy  alike  against  individuals  who  falsely 
claim  to  be  a  corporation,  and  against  a  true  corporation  which 
has  forfeited  its  charter,  —  the  judgment  in  the  latter  case  de- 
priving the  corporation  of  its  franchises  and  revesting  them  in 
the  State. 

Rem.  A  quo  warranto  was  originally  a  proceeding  by  the 
sovereign  to  put  an  end  to  usurpations  of  his  royal  rights,  but 
has  been  extended  to  enable  any  person,  having  an  interest  in  a 
franchise  or  a  public  office  other  than  as  a  mere  member  of  the 
public,  to  raise  the  question  of  title  against  any  alleged  intruder. 
It  will  not  lie  to  try  the  title  to  a  private  office;  nor  after  the 
term  of  the  contested  office  has  expired;  nor  against  an  officer 
functus  officio  unless  to  ascertain  the  validity  of  his  past  official 
acts.  It  is  not  a  writ  of  right,  but  will  be  granted  or  withheld  at 
the  discretion  of  the  court  according  to  the  importance  of  the 
matter,  and  the  clearness  of  the  relator's  right;  and  will  not 
be  allowed  where  ordinary  remedies  are  equally  available.  In 
his  application  for  it  the  relator  must  fully  set  forth  the  grounds 
of  his  complaint,  and  pray  for  the  desired  relief.  The  writ,  if 
issued,  will  after  a  due  hearing  be  dismissed,  or  be  followed  by 
a  judgment  for  the  relator  or  respondent,  enforced  when  necessary 
by  proceedings  for  contempt. 

Read:  3  HI.  Com.,  pp.  262-264; 
High,  Ex.  Rem.,  chaps,  xiii-xx; 
Perry  on  Pleading,  pp.  104-105; 
Wood  on  Mandanuis,  etc.,  pp.  188-206; 
Spelling  ou  Injunctions,  etc.,  §§  1765-1833. 

§  269.     Of  Extraordinary  Actions:  Habeas  Corpus. 

A  writ  of  habeas  corpus  is  a  mandate  issued  by  a  court  of 
competent  jurisdiction  to  some  person,  by  whom  another  per- 
son is  alleged  to  be  detained,  directing  him  to  produce  the  body 
of  his  prisoner  before  the  court  at  a  certain  time  and  place, 
together  with  the  cause  of  his  detention,  and  there  abide  the 
order  of  the  court  thereon.  This  writ  may  be  issued  by  the 
court  in  session,  or  in  vacation  by  any  of  its  judges,  and  may  he 


300  ELEMENTARY   LAW  §  270 

made  immediately  returnable.  It  may  be  granted  either  on  the 
application  of  the  alleged  prisoner  himself,  or  on  that  of  any  per- 
son who  is  willing  to  procure  it.  The  respondent,  if  the  alleged 
prisoner  is  in  his  possession,  must  bring  him  into  court  at  the 
appointed  time  and  place,  and  set  forth  in  his  return  the  facts 
on  which  he  justifies  or  excuses  the  detention ;  and  after  a  due 
hearing  the  court  determines  the  further  disposition  of  the 
prisoner.  If  it  finds  the  detention  to  be  unlawful  it  orders  the 
prisoner  to  be  released ;  if  the  confinement  is  on  mesne  "process 
and  is  lawful  he  will  be  enlarged  on  bail ;  if  the  confinement 
is  on  lawful  final  process  he  will  be  remanded  into  custody  and 
the  writ  dismissed;  if  the  detention  is  by  virtue  of  a  family 
right  he  will  be  delivered  to  the  person  in  whom  that  right 
resides. 

Rem.  This  remedy  has  existed  in  some  form  from  early  ages 
but  has  been  extended  and  regulated  by  several  statutes,  princi- 
pally by  the  Act  of  31  Charles  II,  (a.  d.  1680).  It  is  paramount 
to  all  other  actions  and  is  a  supreme  and  universal  remedy 
for  all  wrongful  restraints  on  the  freedom  of  locomotion;  and 
though  it  may  be  suspended  in  great  national  emergencies  it 
can  neither  be  curtailed  nor  abrogated  by  the  legislature,  nor 
withheld  by  the  courts  when  a  proper  claim  for  its  issue  is  pre- 
sented. It  may  be  employed  to  bring  a  prisoner  held  in  lawful 
confinement  into  court  in  order  that  he  may  plead,  or  testify, 
or  satisfy  a  judgment,  or  perform  any  act  or  enjoy  any  privilege 
which  requires  his  personal  presence ;  or  to  regain  control  over 
a  wife,  child,  ward,  or  other  person  who  is  unlawfully  kept  from 
his  superior  or  guardian ;  or  to  obtain  the  release  of  any  person 
unlawfully  confined.  But  it  cannot  be  used  to. bring  the  final 
proceedings  of  a  court  of  competent  jurisdiction  up  for  review 
on  error  or  appeal,  or  to  reverse  its  judgment  or  thwart  its 
execution.  The  failure  of  one  application  for  the  writ  is  no  bar 
to  another  should  the  circumstances  change. 

Read:  3  Bl.  Com.,  pp.  129-138; 
Perry  on  Pleading,  pp.  105-107; 
Wood  on  Mandamus,  etc.,  pp.  111-147; 
Spelling  on  Injunctions,  etc.,  §§  1151-1161,  1190-1312. 

§  270.     Of  Auxiliary  Actions. 

An  auxiliary  aciioyi  is  distinguished  from  the  principal  action 
by  the  fact  that  it  must  be  commenced  by  new  original  process, 
and  for  the  purpose  of  bringing  in  new  parties,  or  of  subjecting 


§  271  COMMON   LAW  ACTIONS  301 

the  same  parties  to  additional  or  different  liabilities,  or  of  in- 
stituting a  new  series  of  proceedings  after  the  former  have  been 
terminated  by  a  final  judgment.  The  chief  auxiliary  actions 
now  in  use  are  (1)  Garnishment;  (2)  Scire  Facias;  (3)  Writ 
of  Error.  Cases  which  are  beyond  the  reach  of  these  actions 
require  the  interference  of  a  court  of  equity. 

Rem.  The  ordinary  method  of  carrying  a  judgment  into 
effect  by  levying  an  execution  may  often  fail  because  the  property 
of  the  defeated  party  is  beyond  the  reach  of  the  execution  cred- 
itor, or  because  the  time  to  which  the  power  to  levy  is  limited 
has  expired,  or  for  other  reasons  arising  out  of  the  peculiar  cir- 
cumstances of  the  case.  When  this  occurs  other  means  may  be 
found  of  attaining  the  same  object  which  it  is  the  purpose  of 
the  first  two  of  these  auxiliary  actions  to  provide.  The  third 
is  a  method  of  preventing  the  enforcement  of  an  erroneous 
judgment. 

Read:  3  Bl.  Com.,  pp.  406,  41G,  417,  421; 

Maxwell  on  Pleading  and  Practice,  §§  485-494. 

§  271.     Of  Auxiliary  Actions:  Garnishment. 

Garnishment  is  an  auxiliary  actic^i,  brought  by  the  plain- 
tiff in  the  principal  action  against  some  debtor,  agent,  or  trustee 
of  the  defendant,  re(|uiring  him  to  disclose  the  character  and 
amount  of  his  obligations  to  the  defendant,  and  to  pay  over 
to  the  plaijitiff  such  a  sum  as  the  court  may  order,  to  be  applied 
in  entire  or  partial  satisfaction  of  the  judgment  which  the 
plaintitt"  has  obtained  or  may  obtain  against  the  defendant. 
In  this  action  the  garnishee  is  presumed  to  be  indifferent  to 
the  issue  in  the  principal  action,  and  therefore  cannot  dispute 
the  plaintiff's  claim  against  the  defendant.  The  process  obliges 
him  to  appear  and  reveal  his  own  relations  to  the  defendant, 
and  then  await  the  order  of  the  court ;  and  if  in  the  meantime 
he  changes  these  relations  he  does  it  at  his  peril.  It  is  his  duty 
to  notify  the  defendant  of  the  garnishment  that  he  may  protect 
his  own  rights,  but  having  done  this  the  garnishee  may  safely 
follow  the  directions  of  the  court  in  reference  to  his  further 
conduct;  and  any  payment  he  may  make  under  its  orders  will 
to  that  extent  release  him  from  his  obligations  to  the  defendant. 

Rem.  "^rhis  auxiliary  action  partakes  of  the  nature  of  an  action 
in  rem  against  the  j)roj)erty  in  (he  hands  of  the  garnishee,  and  of 


302  ELEMENTARY  LAW  §  272 

a  bill  in  equity  for  a  discovery.  It  is  largely  regulated  by  local 
statutes,  and  is  known  by  various  names,  such  as  'foreign 
attachment,"  the  "trustee  process,"  "copying  process,"  "factoriz- 
ing process,"  etc.  As  the  object  of  this  action  is  to  render  avail- 
able to  the  plaintiff  the  claims  which  the  defendant  could  assert 
against  the  garnishee,  the  proceedings  in  it  cannot  subject  the 
garnishee  or  the  property  in  his  hands  to  any  other  liability  than 
he  is  already  under  to  the  defendant.  Thus  a  garnishment  may 
reach  debts  owing  by  the  garnishee  to  the  defendant  though  not 
yet  payable,  and  goods  in  his  {X)ssession  as  bailee,  agent,  or 
trustee  which  the  defendant  could  immediately  reclaim;  but 
cannot  interfere  with  contingent  debts,  nor  wdth  property  ac- 
quired by  trespass,  nor  with  liabilities  for  tort  not  yet  measured 
by  a  judgment  for  damages,  nor  with  property  in  the  custody 
of  the  law  or  held  in  trust  for  outside  parties  or  in  reference 
to  which  the  garnishee  has  legal  duties  to  perform  requiring  its 
possession.  On  grounds  of  public  policy  the  law  also  forbids 
the  garnishment  of  debts  due  by  the  State  or  public  corporations 
to  the  defendant,  or  of  official  salaries. 

Read:  Drake  on  Attachment,  §§  1-12,  38,  39,  48-68,  71  b,  11  v,  450- 
467,  660-698; 
Waples  on  Attachment  and  Garnishment,  chaps,  i,  ii,  vi; 
Shinn  on  Attaclmient  and  Garnislmient,  §§  1-75,  465-514; 
Wade  on  Attachment,  §§  325-355; 
Maxwell  on  Pleading  and  Practice,  §§  451-473. 

§  272.     Of  Auxiliary  Actions:  Scire  Facias. 

Scire  facias  is  an  action  based  upon  a  judgment,  recogni- 
zance, or  other  judicial  record  directing  the  respondent  to  show 
cause,  if  any  he  has,  why  the  record  should  not  be  enforced, 
amended,  vacated,  or  set  aside.  This  action  must  be  instituted 
in  the  court  where  the  record  on  which  it  is  based  has  been 
preserved.  The  writ  issues  upon  a  suggestion  to  the  court  by 
the  party  interested,  and  the  hearing  on  the  writ  and  return 
is  confined  to  matters  of  law  arising  on  the  record,  and  matters 
of  fact  occurring  since  the  record  was  made.  The  trial  of  the 
question  of  fact  may  be  by  jury,  upon  whose  verdict  and  its 
own  conclusions  of  law  the  court  will  make  such  order  as  the 
justice  of  the  case  requires. 

Rem.  The  most  frequent  uses  of  the  writ  of  scire  facias  are 
the  following:  (1)  To  revive  a  judgment  after  the  death  of  one 
of  the  parties,  or  after  the  customary  time  within  which  an  exe- 
cution can  be  granted  has  expired ;  (2)  To  introduce  new  parties 


§  273  COMMON   LAW  ACTIONS  303 

to  the  record;  (3)  To  obtain  an  execution  against  the  sureties 
on  a  forfeited  recognizance ;  (4)  To  enforce  a  lien  arising  from 
a  mortgage  or  a  statute;  (5)  To  repeal  or  vacate  a  patent  or 
other  franchise  when  the  grant  is  matter  of  record  in  the  court; 
(G)  To  compel  an  officer  to  pay  over  money  collected  by  him  on 
an  execution ;  (7)  To  compel  the  mulcted  party  to  pay  a  fine ; 
(8)  To  compel  a  party  to  appear  and  show  the  cause  of  his 
disobedience  to  an  order  of  the  court.  Another  proceeding  to 
revive  a  judgment  is  a  bill  in  equity  called  a  "Bill  of  Revivor." 

Read:  3  Bl.  Com.,  pp.  248,  261,  413,  416,  421; 
2  Kent  Com.,  Lect.  xxxiii,  p.  313; 
Andrews,  American  Law,  §  857; 
Perry  on  Pleading,  pp.  60-63 ; 
Maxwell  on  Pleading  and  Practice,  §  934. 

§  273.     Of  Auxiliary  Actions:  Writ  of  Error. 

A  ivrit  of  error  is  an  action  brought  to  obtain  the  reversal 
of  the  final  judgment  in  a  previous  action,  on  account  of  some 
mistake  of  law  or  fact  apparent  on  the  record.  This  action 
may  be  instituted  by  a  party  or  privy  to  the  former  action,  or 
by  any  person  to  whose  interests  the  judgment  is  directly  preju- 
dicial; and  all  persons  who  might  be  affected  by  the  reversal 
of  the  judgment  must  be  made  defendants  and  have  an  oppor- 
tunity to  present  their  claims.  Every  error  complained  of,  or 
the  facts  out  of  which  it  grows,  must  appear  upon  the  record 
of  the  case.  This  record  necessarily  contains  a  recital  of  the 
process,  pleadings,  verdict,  and  judgment.  To  this  may  be 
added  by  the  parties,  with  the  consent  of  the  court,  a  further 
statement  called  the  "bill  of  exceptions,"  in  which  are  set  forth 
all  interlocutory  proceedings,  motions,  occurrences  at  the  trial, 
rulings  on  the  admission  or  rejection  of  evidence,  the  instruc- 
tions of  the  judge  to  the  jury,  and  any  other  matters  on  which 
the  plaintiff  in  error  bases  his  claim  for  the  reversal.  Upon 
the  record,  thus  perfected  and  presented  to  the  court,  such  testi- 
mony and  arguments  may  be  heard  as  may  be  necessary,  and 
the  previous  judgment  will  then  be  reversed,  modified,  or  af- 
firmed as  justice  may  require.  When  a  writ  of  error  is  brought 
before  an  execution  has  been  issued  on  the  judgment,  the  execu- 
tion maj/  be  sini/etl  either  absolutely,  or  upon  condition  that  the 
plaintiff  in  error  secure  the  defendant  against  loss  by  the  delay. 
If  execution  has   already  issued,  and  been  levied,  the  existing 


304  ELEMENTARY   LAW  §  274 

circumstances  are  not  interfered  with  until  the  judgment  is 
reversed,  and  then  the  execution  creditor  may  be  compelled 
to  make  restitution. 

Rem.  A  writ  of  error  may  be  brought  either  to  the  same 
court  in  which  the  previous  judgment  was  rendered,  or  to  an 
appellate  court.  Where  the  reversal  is  claimed  on  account  of 
errors  of  fact  the  writ  must  be  brought  to  the  same  court,  and 
is  called  a  ^^  writ  coram,  nobis."  The  errors  which  may  then  be 
taken  advantage  of  are  such  as  affect  the  jurisdiction  of  the 
court  to  render  the  judgment;  for  instance,  the  incapacity  of 
the  parties  to  sue  or  be  sued,  the  want  of  opportunity  of  one  of 
the  parties  to  appear  and  be  heard,  or  the  failure  of  the  court 
to  appoint  a  guardian,  ad  litem  for  an  infant  defendant.  A  writ 
of  error  based  on  mistakes  of  law  of  a  substantial  character  is 
brought  to  an  appellate  court,  and  is  called  a  writ  coram  rohi.'i; 
and  on  this  action  all  errors  apparent  on  the  record  are  open  to 
review,  and  if  the  judgment  is  reversed  the  proceedings  are 
remanded  to  the  lower  court  for  a  new  trial  from  the  point  at 
which  the  earliest  mistake  occurred.  A  writ  of  error  will  not 
lie  for  mistakes  in  matters  of  discretion,  or  those  of  a  mere  formal 
nature,  or  those  which  work  no  material  injury  to  the  defeated 
party.  The  time  within  which  a  writ  of  error  must  be  brought 
after  the  previous  judgment  is  rendered  is  sometimes  regulated 
by  statute;  and  in  certain  States  motions  in  the  nature  of  a 
writ  of  error  are  permitted  to  be  made  as  part  of  the  original 
proceedings.  Another  method  of  reviewing  the  proceedings  of 
an  inferior  court  is  by  certiorari,  which  is  a  writ  issued  by  a 
superior  to  an  inferior  tribunal  requiring  it  to  certify  up  to  the 
superior  court  the  record  in  the  case,  in  order  that  the  correct- 
ness of  the  rulings  of  the  inferior  court  may  be  examined. 

Read:  3  Bl.  Com.,  pp.  40&-411; 

Andrews,  American  Law,  §  802; 
Perry  on  Pleading,  pp.  222-225; 
Shipman  on  Pleading,  §§  91,  92; 
Maxwell  on  Pleading  and  Practice,  §§  474-479. 


§  274.     Of  Statutory  Actions. 

A  statutory  action  is  an  action  brought  under  the  provisions 
of  a  local  statute  which  affords  to  an  injured  party  some  peculiar 
form  or  method  of  redress.  The  statutes  on  which  such  actions 
may  be  based  may  be  remedial  or  penal  statutes;  but  in  either 
case  the  action  is  a  'private  action,  and  is  conducted  by  the  plain- 
tiff at  his  own  expense.    Statutes  providing  special  remedies  are 


§  275  COMMON  LAW  ACTIONS  305 

of  strict  construction,  and  actions  brought  thereon  must  comply 
with  all  the  directions  of  the  statutes. 

Rem.  A  remedial  statute  may  provide  a  new  remedy  for 
wrongs  against  existing  rights ;  or  may  create  a  new  right  and 
prescribe  a  remedy  for  its  violation;  or  may  create  the  right 
and  leave  the  person  injure(i  by  its  infringement  to  such  redress 
as  the  courts  of  law  and  equity  afford.  In  any  of  these  cases 
the  aggrieved  party  may  avail  himself  of  any  of  these  actions  at 
his  option,  unless  the  statute  makes  its  remedy  exclusive.  A 
'penal  statute  may  authorize  an  injured  person  to  sue  public 
offenders,  in  an  action  on  the  statute,  for  the  damages  inflicted 
by  their  crimes,  and  may  fix  the  amount  of  damages  far  beyond 
what  could  be  recovered  in  ordinary  actions.  Penal  statutes 
may  also  empower  private  persons  to  bring  actions  in  the  name 
of  the  State  as  well  as  their  own  names  against  a  criminal  to 
recover  the  fine  attached  by  law  to  the  offence;  one  moiety  of 
the  fine  to  be  paid  to  the  State,  the  other  moiety  to  be  kept  by 
the  plaintiff  as  a  compensation  for  his  trouble.  Such  actions  are 
called  qui  tarn  actions,  and  are  instituted  at  the  risk  and  expense 
of  the  plaintiff. 

Read:  3  BI.  Com.,  pp.  159,  160; 
4  Bl.  Com.,  p.  308; 

Chitty  on  Pleading,  pp.  119,  125,  126,  161; 
Perry  on  Pleading,  p.  51 ; 
Shipman  on  Pleading,  §§9,  11,  19; 
Foster's  First  Book  of  Practice,  pp.  194-196. 

§  275.     Of  the  Election  of  Actions. 

Different  actions  are  sometimes  available  for  the  same  WTongs, 
— ■  as  assumpsit  and  debt,  debt  and  covenant,  trover  and  re- 
plevin. Where  the  wrong  in  all  its  aspects  violates  but  a  single 
right  the  available  actions  are  consistent  with  one  another  and 
are  said  to  be  conrurrent ;  and  may  all  be  pursued  at  once  as 
different  portions  of  the  same  remedial  proceeding,  though  but 
one  adequate  compensation  for  the  wrong  can  be  obtained. 
But  where  the  aspects  of  the  wrong  are  distinguished  by  its 
relation  to  separate  legal  rights,  the  assertion  of  one  of  which 
involves  the  waiver  of  the  other,  the  available  actions  are  irv 
consistent  with  each  other,  and  are  said  to  be  alternate,  or 
mutually  exdu.sive  of  each  other;  as  in  trover  for  the  conver- 
sion of  chattels  and  assumpsit  for  tlieir  value,  or  as  in  trespass 
for  intrusion  u|)()n  land  and  assumpsit  for  its  use  and  occupation. 

20 


306  ELEMENTARY   LAW  §  276 

Between  alternate  remedies  a  choice  must  always  be  made, 
and  if  the  one  selected  is  within  the  jurisdiction  of  the  court, 
and  is  legally  adapted  to  the  facts  in  controversy,  the  choice 
becomes  irrevocable  when  the  suit  is  instituted,  and  all  its 
alternates  are  forever  waived.  An  election  between  concurrent 
remedies  is  not  necessarily  final,  but  if  one  should  be  tried  and 
fails  others  may  be  brought  until  the  ends  of  justice  are  accom- 
plished. 

Rem.  Some  of  the  principal  reasons  by  which  a  choice  be- 
tween alternate  or  concurrent  remedies  is  guided  are  the  follow- 
ing: (1)  The  status  of  the  parties,  determining  their  capacity 
or  liability  in  certain  forms  of  action  and  not  in  others ;  (2)  The 
Statute  of  limitations,  under  which  some  actions  are  barred 
earlier  than  others ;  (3)  The  insolvency  of  the  defendant  which 
may  make  some  remedies  useless,  while  others  might  be  pro- 
ductive of  results ;  (4)  The  right  to  arrest  the  body  of  the  de- 
fendant which  is  incidental  to  some  actions  and  not  to  others; 
(.5)  The  rules  regulating  damages,  under  which  a  larger  com- 
pensation might  be  obtained  in  certain  actions  than  in  others; 
(6)  The  joinder  of  defendants,  which  is  necessary  in  contract 
actions,  but  optional  in  torts ;  (7)  The  joinder  of  causes  of 
action,  the  rules  governing  which  are  more  liberal  in  some  forms 
of  action  than  in  others ;  (8)  The  nature  of  the  evidence  obtain- 
able, which  may  be  sufficient  to  support  one  action  and  not 
another;  (9)  The  difference  between  actions  as  to  matters  of 
procedure,  which  may  make  one  action  more  convenient  or 
advantageous  to  the  plaintiff  than  the  others. 

Read:  Chitty  on  Pleading,  pp.  151,  229-234; 
Stephen  on  Pleading,  §§  44-51; 
Perry  on  Pleading,  pp.  111-115; 
Shipman  on  Pleading,  §  9; 
Bliss  on  Code  Pleading,  §§  11-19. 

§  276.     Of  the  Joinder  of  Actions. 

The  law  encourages  the  joinder  in  one  action  of  distinct  causes 
of  action,  so  far  as  this  may  be  consistent  with  coherence  and 
economy  in  the  proceedings;  and  should  a  plaintiff  without 
necessity  refuse  to  make  such  joinder,  and  institute  separate 
suits,  the  courts  have  power  to  compel  him  to  consolidate  his 
actions,  and  seek  in  one  proceeding  for  the  vindication  of  his 
violated  rights.  Not  only  may  different  causes  be  joined  in 
one  suit,  but  different  forms  of  actions  ex  contractu,  or  different 


§  277  DEFENCES  TO  COMMON   LAW  ACTIONS  307 

forms  of  actions  ex  delicto,  may  be  joined  in  the  same  action  by 
stating  them  in  different  counts  in  the  plaintiff's  declaration ;  and 
in  States  wliich  have  adopted  the  New  Procedure  actions  ex 
contractu  may  be  joined  with  actions  ex  delicto  unless  the  com- 
bination produces  such  confusion  as  to  prevent  an  intelligent 
determination  of  the  issues.  Different  modes  of  stating  the 
same  cause  of  action  in  different  counts  in  the  same  declaration 
are  also  permitted,  in  order  to  meet  unexpected  phases  of  the 
testimony,  so  that  upon  the  proof  hereafter  to  be  given  some 
one  of  them  may  be  sufficiently  established. 

Rem.  The  law  does  not  permit  a  single  cause  of  action  to  be 
divided  into  several  parts,  —  as  a  debt  into  its  different  items,  or  a 
tort  into  wrongs  against  the  different  articles  of  property  which 
may  be  injured  by  it,  —  and  each  part  to  be  made  the  subject  of 
a  different  suit.  In  case  of  a  continuing  injury,  or  of  an  obliga- 
tion whose  fulfilment  requires  the  performance  of  several  acts, 
the  plaintiff  must  wait  until  the  injury  is  complete  or  the  obli- 
gation has  matured  before  he  institutes  his  suit,  and  then  must 
include  all  his  claims  for  compensation  in  his  single  action.  If 
he  sues  prematurely  he  can  prove  only  the  injuries  he  has  sus- 
tained before  he  institutes  his  action,  and  if  on  such  a  suit  he 
recovers  damages  he  waives  all  right  of  action  for  the  losses  he 
may  subsequently  undergo. 

Read:  Chitty  on  Pleading;,  pp.  221-229; 
Perry  on  Pleading,  pp.  109-111; 
Shipman  on  Pleading,  §  255; 
Gould  on  Pleading,  ch.  iv,  §§  79-98; 
Bliss  on  Code  Pleading,  §§  111-1.34; 
Maxwell  on  Code  Pleading,  pp.  340-357. 


SECTION  II 

OF  THE  DEFENCES  TO   ACTION'S  IN  THE  COURTS  OF  COMMON  LAW 

§  277.     Of  the  Universal  Defences. 

Defences  to  actions  are  those  matters  of  law  or  fact  which  a 
defendant  is  at  liberty  to  urge  in  order  to  defeat  the  plaintiff's 
claim.  Some  defences  reach  the  merits  of  the  controversy,  and 
deny  the  existence  of  the  cause  of  action.  Others  attack  the 
action  only,  and  affirm  either  that  the  plaintiff  had  no  right  to 
bring  it,  or  that  he  has  instituted  it  in  an  improper  manner. 
Still  others  deny  the  jurisdiction  of  the  court  to  entertain  the 


308  ELEMENTARY   LAW  §  278 

action.  All  those  defences  which  deny  the  jurisdiction  of  the 
court  or  attack  the  action  only,  and  some  of  those  which  reach 
the  merits  of  the  controversy,  are  available  in  every  form  of 
action  and  are  therefore  universal  defences ;  others  are  peculiar 
to  one  action  or  to  a  few  kindred  actions.  Of  the  universal 
defences  there  are  ten:  (1)  Want  of  jurisdiction;  (2)  Action 
improperly  instituted;  (3)  Statute  of  Limitations;  (4)  Joint 
wrong;  (5)  Equal  fault;  (6)  Estoppel;  (7)  Accord  and 
satisfaction;  (8)  Arbitration  and  award;  (9)  Former  recovery; 
(10)  Release.  The  special  defences  vary  in  number  and 
character  with  the  different  actions  to  which  they  relate. 

Rem.  Any  one  of  the  universal  defences,  if  sustained,  is  fatal 
to  the  action.  The  law,  however,  compels  the  defendant  to 
observe  a  certain  order  in  their  presentation.  Thus  a  defence 
based  on  the  want  of  jurisdiction  must  be  offered,  if  at  all, 
before  any  other  is  asserted,  since  the  proof  of  this  precludes  the 
necessity  of  urging  any  other.  For  a  similar  reason  the  defence 
of  action  improperly  instituted  is  the  second  in  order.  The 
other  eight  may  be  presented  simultaneously,  or  singly,  or  in 
connection  with  the  special  defences  peculiar  to  the  action. 

Read  :  Chitty  on  Pleading,  pp.  456,  457. 

§  278.     Of  the  Universal  Defences:  Want  of  Jurisdiction. 

No  court  can  for  a  moment  entertain  an  action  unless  it  has 
jurisdiction  both  over  the  parties  and  the  subject-matter,  and 
therefore  any  defence  based  on  the  want  of  jurisdiction,  if  suc- 
cessful, requires  the  immediate  dismissal  of  the  action  from  the 
court.  The  want  of  jurisdiction  may  depend  upon  matters  of 
fact  or  upon  matters  of  law,  and  whenever  these  matters  are 
brought  to  the  attention  of  the  court  it  is  its  duty  at  once  to 
cease  proceedings,  and  erase  the  suit  from  its  records. 

Rem.  It  is  not  even  necessary  for  the  defendant  to  urge  this 
defence;  for  if  it  comes  in  any  way  to  the  knowledge  of  the 
court,  as  by  inspection  of  the  record  or  the  disclosures  of  the 
evidence,  and  at  any  stage  of  the  proceedings,  its  duty  is 
the  same,  since  neither  its  own  authority  nor  the  consent  or  con- 
duct of  the  parties  can  confer  a  jurisdiction  which  the  law  has 
not  bestowed. 

Read:  Chitty  on  Pleading,  pp.  279-291,  457-459; 
Maxwell  on  Pleading  and  Practice,  §§  3-15. 


§  279  DEFENCES  TO   COMMON   LAW  ACTIONS  309 

§  279.     Of    the    Universal    Defences :    Action    Improperly    In- 
stituted. 

An  action  is  properly  instituted  when  a  correctly  described 
plaintiff,  having  capacity  to  sue,  brings  into  court  by  proper 
legal  process  a  correctly  described  defendant  capable  of  being 
sued,  upon  an  accrued  and  outstanding  cause  of  action  recog- 
nized by  law.  A  plaintiff  and  defendant  are  correctly  described 
when  the  precise  persons  who  constitute  these  parties  are  named 
as  such  by  their  true  Christian  names  and  surnames,  their 
places  of  residence,  and  any  official  titles  that  may  be  necessary 
to  show  their  relation  to  the  cause  of  action  for  which  the  suit 
is  brought.  The  plaintiff"  has  capacity  to  sue,  and  the  defend- 
ant to  be  sued,  when  they  are  of  normal  status  or  when,  though 
of  abnormal  status,  they  are  not  deprived  of  that  capacity  by 
their  peculiar  abnormality.  The  defendant  is  brought  into  court 
by  proper  legal  process  when  a  sufficient  writ  has  been  lawfully 
issued  against  him,  and  has  been  served  upon  him  by  the  persons 
and  in  the  manner  prescribed  by  law.  A  cause  of  action  recog- 
nized by  law  is  one  for  which  the  courts  of  common  law  afford 
a  remedy.  A  cause  of  action  has  accrued  when  it  has  reached  such 
a  stage  of  maturity  that  the  law  permits  the  court  to  instantly 
apply  the  remedy.  A  cause  of  action  is  outstanding  when  the 
plaintiff  has  not  already  taken  measures,  before  the  same  or 
another  court,  to  obtain  the  same  redress.  An  action  wanting 
in  either  of  these  requisites  is  not  properly  before  the  court, 
and  cannot  be  proceeded  with  against  the  objection  of  the 
defendant. 

Rem.  The  defences  arising  out  of  the  failure  of  the  plaintiff 
to  observe  these  different  re(iuircments  in  the  institution  of  his 
suit  are  the  following:  (1)  Nonjoinder  of  persons  who  should 
be  plaintiffs ;  (2)  Misjoinder  of  persons  who  should  not  be 
plaintiffs;  (3)  Misdescription  of  persons  who  are  named  as 
plaintiffs ;  (4)  Incapacity  to  sue  of  the  persons  nanicfl  as  plain- 
tiffs; (5)  Nonjoinder  of  persons  who  should  be  (lefendants; 
(())  Misjoinder  of  persons  who  should  not  be  (iefenrlants;  (7) 
Misdescription  of  persons  who  are  named  as  defendants;  (S) 
Incapacity  to  be  sued  of  the  jiersons  who  are  named  as  defendants  ; 
(9)  The  writ  defect  ire  in  form  or  substance;  (10)  Vnlnrrful 
WTOr  of  the  writ ;  (11)  Dcfectixr  service  o{  ihc  v^'v\{;  (12)  The 
cause  of  action  insufficient  in  the  law  to  warrant  the  institution 


310  ELEMENTARY   LAW  §  280 

of  the  suit ;  (13)  The  institution  of  the  suit  before  the  defend- 
ant's wrong  had  become  so  complete  as  to  entitle  the  plaintiff  to 
an  immediate  remedy;  (14)  The  pendency  of  a  prior  acticm 
for  the  same  cause  of  action  and  seeking  the  same  redress. 
Either  of  these  defences  would,  in  former  times,  have  been  a 
bar  to  the  further  prosecution  of  the  action;  but  the  power  is 
now  given  by  statutes  to  the  plaintiff  to  amend  in  cases  of  false 
joinder,  misdescription,  and  other  formal  errors,  provided  the 
necessary  parties  have  legal  capacity,  and  are  properly  before 
the  court,  and  the  cause  is  ripe  for  action,  and  no  prior  incon- 
sistent suit  has  been  commenced. 

Read:  3  Bl.  Com.,  pp.  301,  302; 

Andrews,  American  Law,  §§  645,  651; 
Chitty  on  Pleading,  pp.  462-470; 
Perry  on  Pleading,  pp.  176-178; 
Shipman  on  Pleading,  §  51; 
2  Greenleaf,  Evidence,  §§  18-27. 


§  280.     Of  the  Universal  Defences :  The  Statute  of  Limitations. 

A  cause  of  action  may  appear  to  exist,  and  yet  the  law  may 
withhold  the  remedy  from  the  plaintiff  on  account  of  some 
action  or  omission  of  which  he  has  been  guilty,  and  which  ren- 
ders it  inexpedient  or  unjust  that  the  action  should  be  main- 
tained. The  universal  defences  thus  affecting  the  plaintiff's 
right  to  institute  an  action  are  three:  (1)  The  Statute  of  Lim- 
itations; (2)  Joint  wrong;  and  (3)  Equal  fault.  The  Statute 
of  Limitations  is  intended  to  prevent  the  prosecution  of  stale 
claims.  It  fixes  definite  periods  of  time  within  which  actions 
must  be  commenced  after  the  cause  of  action  becomes  com- 
plete, provided  the  plaintiff  is  capable  of  suing,  and  the  de- 
fendant is  within  the  reach  of  process  and  is  capable  of  being 
sued.  These  periods  are  not  of  equal  duration  for  all  actions, 
nor  for  the  same  action  in  all  our  States.  The  period  begins 
to  run  as  soon  as  the  plaintiff  could,  if  he  would,  commence 
his  suit,  and  thenceforward  continues  running  uninterruptedly 
unless  the  defendant  by  his  own  act,  or  by  an  intervening 
war  or  other  inevitable  obstacle  is  placed  beyond  the  reach  of 
process. 

Rem.  This  Statute  was  enacted  in  the  21  James  I.  (a.  d. 
1624),  and  has  been  revised  and  extended  by  the  legislation  of 
our   American   States.     It  is  optional  with   the   defendant   to 


§  281  DEFENCES  TO  COMMON   LAW   ACTIONS  311 

avail  himself  of  this  defence.  He  may  formally  waive  it,  or  by 
a  new  promise  based  upon  the  obligation  of  the  old  he  may  give 
to  the  plaintiff  a  new  right  of  action ;  or  may,  when  sued,  ignore 
his  rights  under  this  Statute  and  stand  upon  some  other  matter 
of  defence.  If  he  insists  on  this,  however,  and  sustains  his  claim 
as  to  the  facts,  it  forms  a  complete  bar  to  the  plaintiff's  suit. 

Read:  3  Bl.  Com.,  pp.  306-308; 

1  Addison  on  Torts,  pp.  66-70,  262-269; 
Jaggard  on  Torts,  §§  112,  113; 

2  Greenleaf,  Evidence,  §§  430-448; 

3  Parsons  on  Contracts,  pp.  66-101 ; 
Smith,  Personal  Property,  §§  115-120; 

Bolles,  Important  English  Statutes,  p.  83,  Stat.  Lim.,  21  James  I. 


§  281.  Of  the  Universal  Defences:  Joint  Wrong:  Equal  Fault. 
The  law  forbids  a  person  to  take  advantage  of  his  ovm  wrong, 
and  therefore  one  who  seeks  redress  through  its  assistance 
must  himself  be  free  from  participation  in  the  wrong  by  which 
the  injury  was  inflicted.  Thus  where  two  persons  voluntarily 
engage  in  the  same  illegal  act,  and  in  the  execution  of  their 
joint  wrong  one  sustains  an  injury  through  the  conduct  or 
omissions  of  the  other,  no  remedy  for  such  injury  can  be  obtained 
at  law.  This  rule  does  not  apply  where  the  injurious  action 
or  omission  formed  no  part  of  the  common  enterprifie,  or  where 
it  was  in  itself  a  crime  directed  by  one  of  the  parties  against 
the  other  though  with  his  consent;  for  in  such  cases  no  prin- 
ciple of  law  prevents  the  injured  party  from  pursuing  his  ap- 
propriate remedy.  The  law  also  refuses  to  hold  a  defendant 
responsible  to  a  plaintiff  for  injuries  to  whose  causation  the 
plaintiff  has  contributed  by  his  own  equal  fault.  This  defence 
finds  frequent  application  in  suits  for  injuries  caused  by  the 
defendant's  neglect  of  duty,  under  the  claim  that  the  plaintiff 
was  guilty  of  ^' contributor ij  negligence." 

Rem.  These  two  defences  resemble  one  another  in  that  in 
each  case  the  injury  has  resulted  from  circumstances  as  to  which 
both  parties  were  at  fault.  They  differ  in  that  in  the  defence 
of  joint  wrong  both  parties  were  engaged  in  the  same  wrongful 
undertaking,  as  to  whose  v\\\  consequences  to  themselves  the 
law  affords  them  no  protection ;  while  in  the  defence  of  equal 
fault  there  is  no  joint  wrongful  enterprise,  but  a  mere  concur- 
rence of  independent  wrongful  actions  or  omissions  out  of  which, 


312  ELEMENTARY  LAW  §  282 

by  reason  of  their  coincidence  in  place  and  time,  the  injury  to 
the  plaintiff  flows.  Thus  a  riot,  in  the  course  of  which  one  of 
the  rioters  is  injured  by  the  riotous  act  of  his  co-rioters,  is  an 
instance  of  joint  wrong ;  a  collision  between  two  riders,  driving 
at  unreasonable  speed  at  night  in  opposite  directions,  is  a  case 
of  equal  fault.  Both  of  these  defences  are  included  in  the  an- 
cient maxim,  —  "In  pari  delicto  potior  est  conditio  defendentis." 

Read:  Andrews,  American  Law,  §  658; 
Clark,  Elementary  Law,  §  104; 
Cooley  on  Torts,  pp.  151-159,  672-683; 
Pollock  on  Torts,  pp.  185-191,  205-208; 
Jaggard  on  Torts,  §§  63-65,  270-278. 


§  282.     Of  the  Universal  Defences :  Estoppel. 

The  right  to  institute  an  action,  like  every  other  right  except 
those  to  personal  security  and  liberty  and  a  few  of  the  most 
essential  family  rights,  may  be  suspended  or  forever  barred 
by  an  estoppel.  If  the  plaintiff  has  wilfully  or  negligently  mis- 
led the  defendant  into  a  situation  where  the  suit  must  take  him 
at  an  unfair  disadvantage,  under  which  he  would  not  have 
labored  had  he  never  been  misled,  the  law  will  not  co-operate 
with  the  plaintiff  to  complete  the  injury  by  securing  to  him, 
through  an  action,  the  advantage  which  he  has  thus  wrongfully 
obtained. 

Rem.  Estoppel  is  a  defence  more  widely  applicable  than  any 
other.  It  may  prevent  the  cause  of  action  from  accruing ;  it  may 
avoid  the  cause  of  action  when  accrued.  It  may  destroy  the 
right  of  action  though  the  cause  be  valid ;  it  may  forbid  one 
form  of  action  though  permitting  others;  it  may  cause  the  dis- 
missal of  one  suit  though  offering  no  hindrance  to  the  immedi- 
ate institution  of  its  duplicate;  it  may  be  an  element  in  the 
questions  which  are  raised  concerning  the  jurisdiction  of  the 
court ;  and  in  all  stages  of  the  proceedings  may  serve  either 
party  as  an  effectual  answer  to  the  claims  of  his  antagonist. 
An  estoppel  which  extinguishes  a  cause  of  action  necessarily 
rests  on  broader  foundations  of  fact  than  one  which  merely 
suspends  or  abrogates  the  right  of  action,  though  when  it  is  a 
bar  to  the  cause  of  action  it  at  the  same  time  terminates  the 
right. 

Read:  3  Bl.  Com.,  p.  308; 

Addison  on  Torts,  pp.  745,  746; 

Jaggard  on  Torts,  §§  102-105; 

2  Parsons,  Contracts,  pp.  787-801. 


§§  283,  284     DEFENCES  TO  COMMON   LAW  ACTIONS     313 

S  283.     Of  the  Universal  Defences  :  Accord  and  Satisfaction : 
Arbitration  and  Award  :  Former  Recovery  :  Release. 

An  accord  and  satisfaction,  where  satisfaction  has  been  made; 
an  arbitration  and  award,  where  the  award  has  been  accepted 
and  performed;  a  former  judgment,  where  it  has  been  paid;  and 
a  release  given  and  received  between  the  parties,  —  these  are 
defences  which  can  extinguish  any  previously  existing  cause 
of  action,  and  put  an  end  to  all  proceedings  under  it.  A  re- 
lease is  a  writing  under  seal  duly  executed  by  the  plaintiff,  and 
formally  discharging  the  defendant  from  further  liability  on 
account  of  the  existing  cause  of  action.  It  resembles  an  accord 
and  satisfaction  in  its  general  nature  and  effect,  but  requires 
no  actual  valuable  consideration,  —  such  consideration  being 
imported  by  the  seal.  A  release  by  one  co-plaintiff,  or  to  one 
joint  defendant,  is  binding  as  to  all. 

Rem.  An  award  unperformed  does  not  affect  the  substance 
of  the  cause  of  action  thougii  it  may  change  its  form,  and  it  may 
still  become  the  basis  of  a  suit.  A  judgment  unsatisfied  merges 
the  original  cause  of  action  and  to  that  extent  avoids  it;  but  is 
itself  the  cause  of  further  actions  of  debt  or  scire  facias. 

Read:  Andrews,  American  Law,  §  764; 
Addison  on  Torts,  pp.  .52-56; 
Jaggard  on  Torts,  §§  10.3-109; 
2  Greenleaf,  Eviilcnce,  §§  28-33,  69-81; 
2  Parsons,  Contracts,  pp.  681-716,  729-734; 
Foster's  First  Book  of  Practice,  pp.  273-289. 

§  284.     Of  the  Special  Defences  in  the  Actions  of  Assumpsit, 
Debt,  and  Covenant. 

The  special  defences  in  actions  of  assumpsit,  debt,  and  cove- 
nant either  deny  that  the  alleged  contract  was  ever  made,  or 
deny  that  it  was  ever  broken,  or  assert  that  after  it  was  broken 
the  cause  of  action  arising  from  its  breach  was  extinguished. 
If  the  alleged  contract  was  an  implied  or  a  q\iasi  contract  a 
denial  that  it  was  ever  made  involves  either  (1)  a  denial  that 
the  circumstances,  claimed  by  the  plaintiff  as  the  basis  of  the 
contract,  ever  existed ;  or  (2)  a  denial  that  the  law  would 
imply  the  alleged  contract  or  obligation  from  the  circumstances 
which  did  in  fact  e.xist;  or  (l])  an  assertion  that  even  if  in 
ordinary  cases  the  law  would  imply  the  contract  from  (he  cir- 


314  ELEMENTARY  LAW  §  284 

cumstances,  yet  in  this  case  the  plaintiff  is  estopped  to  claim 
that  such  a  contract  was  implied.  If  the  alleged  contract  was 
an  express  contract,  a  denial  that  it  was  ever  made  either  (1) 
affirms  that  the  defendant  never  entered  into  such  a  contract ; 
or  (2)  asserts  that  though  apparently  he  entered  into  the  agree- 
ment, still  he  was  not  bound  thereby,  either  (a)  because  through 
infancy,  lunacy,  drunkenness,  coverture  or  duress,  he  was 
incapable  of  making,  or  the  plaintiff  was  incapable  of  accepting, 
the  promises  in  question ;  or  (b)  because  the  promise  was  made 
without  a  valuable  consideration;  or  (c)  because  the  subject- 
matter  of  the  promise  was  illegal  or  inherently  impossible; 
or  (d)  because  the  promise  was  not  in  legal  form  under  the 
Statute  of  Frauds  or  other  provisions  of  the  local  law;  or  (e) 
because  the  defendant  was  induced  to  make  the  promise  by 
the  fraudulent  conduct  of  the  plaintiff.  A  denial  that  the  con- 
tract was  ever  broken  asserts  either  (1)  that  the  contract  was 
rescinded  between  the  parties  before  the  time  for  its  perform- 
ance had  arrived;  or  (2)  that  it  was  so  altered  by  the  agree- 
ment of  the  parties,  before  the  time  for  its  performance,  that 
it  no  longer  answered  the  description  now  given  of  it  by  the 
plaintiff;  or  (3)  that  its  subject-matter  became  illegal  before 
the  time  for  performance;  or  (4)  that  the  plaintiff  has  failed 
to  perform  some  act  which,  by  the  terms  of  the  contract  or 
by  its  necessary  implications,  was  made  a  condition  precedent 
to  performance  by  the  defendant;  or  (5)  that  the  defendant 
completely  fulfilled  his  obligations  under  the  contract  before 
or  at  the  time  fixed  for  its  performance ;  or  (6)  that  at  the  time 
fixed  for  performance  the  defendant  tendered  performance  to 
the  plaintiff  and  the  plaintiff  refused  to  accept  it.  The  defence 
that  after  the  cause  of  action  arose  out  of  the  breach  of  the  con- 
tract it  was  legally  extinguished  affirms  either  (1)  that  after 
the  date  fixed  by  the  contract  the  defendant  performed  the 
contract  obligation  to  the  acceptance  of  the  plaintiff;  or  (2) 
that  an  accord  and  satisfaction  had  taken  place  between  the 
plaintiff  and  defendant ;  or  (3)  that  the  defendant  was  absolved 
from  liability  to  the  plaintiff  by  a  judgment  in  an  action  of 
garnishment;  or  (4)  that  the  defendant  had  made  a  tender  of 
payment  or  performance  with  interest  and  costs ;  or  (5)  that 
there  had  been  a  substitution,  by  agreement  of  the  parties,  of 


§  285  DEFENCES  TO  COMMON   LAW  ACTIONS  315 

a  new  contract  for  the  one  already  broken ;  or  (G)  that  the 
matter  in  dispute  had  been  submitted  to  an  arbitration  and 
the  award  had  been  performed ;  or  (7)  that  a  former  judgment 
on  the  same  subject-matter  had  been  obtained  and  satisfied; 
or  (8)  that  the  plaintiff  had  released  the  defendant  from  his 
liability  for  the  breach  of  contract ;  or  (9)  that  the  plaintiff, 
after  the  cause  of  action  had  accrued,  was  guilty  of  conduct 
working  an  estoppel. 

Rem.  These  defences  are  all  alike  applicable  to  actions  of 
assumpsit,  debt,  and  covenant,  except  that  in  covenant  no  want 
of  consideration,  and  no  parol  discharge  or  alteration  of  the 
contract,  can  be  alleged.  The  mode  of  pleading  these  and 
other  special  defences  varies  with  the  different  forms  of  action 
in  which  they  may  be  urged. 

Read:  Chitty  on  Pleading,  pp.  486-489,  492-516. 


§  285.     Of  the  Special  Defences  in  Actions  of  Account. 

An  action  of  account  presents  two  issues :  fir.<tt,  whether 
the  plaintiff  is  entitled  to  any  accounting  from  the  defendant; 
second,  whether  any  balance  of  account  is  due  to  the  plaintiff, 
and  what  is  its  amount.  Upon  the  firsi  issue  the  defences  are: 
(1)  that  no  relation  ever  subsisted  between  the  plaintiff  and 
defendant,  whether  by  contract  or  as  agent,  trustee,  co-tenant, 
partner,  or  otherwise,  by  which  the  defendant  became  liable 
to  account  to  the  plaintiff;  or  (2)  that  the  habiUty  to  account 
had  been  released  by  a  subsequent  agreement  between  the 
parties ;  or  (3)  that  a  proper  accounting  had  already  been  made. 
Upon  the  second  issue  all  the  contract  obligations  of  the  plaintiff 
and  defendant  toward  each  other  are  subjects  of  assertion  and 
denial. 

Rem.  The  contract  obligations  examinable  in  an  action  of 
account,  after  the  liability  to  account  at  all  has  been  decided, 
are  the  same  as  those  in  controversy  in  actions  of  assumpsit, 
debt,  and  covenant ;  and,  therefore,  the  defences  applicable  in 
those  actions  are  ecjually  appropriate  to  the  second  issue  in  the 
action  of  account. 

Read:  Cliitty  on  Pleading,  p.  516. 


316  ELEMENTARY   LAW  §  286 

§  286.     Of  the  Special  Defences  in  Actions  of  Trespass. 

The  special  defences  in  actions  of  trespass  are  two :  first, 
that  no  cause  of  action  ever  existed;  second,  that  whatever 
cause  of  action  may  have  once  existed  has  since  been  extin- 
guished. In  trespass  quare  clausum  fregit  the  original  existence 
of  the  cause  of  action  is  denied  by  affirming  either  (1)  that 
the  plaintiff  at  the  time  of  the  alleged  trespass  had  no  possession 
of  the  land,  or  no  such  possession  as  he  could  lawfully  assert 
against  the  defendant ;  or  (2)  that  the  defendant  never  entered 
on  the  land;  or  (3)  that,  though  he  entered,  it  was  in  pur- 
suance of  legal  process,  or  under  an  express  or  implied 
license  from  the  plaintiff.  In  trespass  de  bonis  asportatis  the 
original  existence  of  the  cause  of  action  is  denied  by  asserting 
either  (1)  that  the  plaintiff  at  the  time  of  the  alleged  asportation 
had  no  possession  of  the  goods,  or  no  such  possession  as  he 
could  lawfully  set  up  against  the  defendant;  or  (2)  that  the 
defendant  did  not  asport  or  destroy  the  goods;  or  (3)  that 
though  he  did  asport  the  goods  it  was  in  pursuance  of  legal 
process  or  by  license  of  the  plaintiff.  In  trespass  vi  et  armis 
for  injury  to  the  person  the  original  existence  of  the  cause  of 
action  is  denied  by  affirming  either  (1)  that  the  alleged  acts  of 
violence  were  never  committed  against  the  plaintiff  by  the 
defendant;  or  (2)  that,  though  committed,  they  were  com- 
mitted (a)  in  necessary  self-defence;  or  (6)  in  the  lawful 
removal  of  a  trespasser;  or  (c)  in  the  service  of  legal  process; 
or  (d)  as  part  of  an  inevitable  accident;  or  (e)  by  license  of 
the  plaintiff ;  or  (/)  in  the  discharge  of  some  parental  or  other 
legal  duty.  In  actions  per  quod  servitium  amisit  the  original 
existence  of  the  cause  of  action  is  denied  by  asserting  either 
(1)  that  no  family  relationship  existed  by  which  the  plaintiff 
was  entitled  to  the  society  or  services  of  the  person  injured 
by  the  defendant;  or  (2)  that  the  defendant  never  in- 
flicted the  injury  described;  or  (3)  that  the  injury  which 
was  inflicted  was  justifiable  in  law,  for  that  it  was  (a) 
in  necessary  self-defence;  or  (b)  an  act  of  necessity  or 
charity;  or  (c)  in  the  service  of  legal  process;  or  (d)  by  the 
express  or  implied  license  of  the  plaintiff.  In  all  forms  of 
trespass  the  defences  claiming  that  the  original  cause  of 
action  has  been  extinguished  are  (1)  accord  and  satisfaction; 


§  287  DEFENCES  TO  COMMON   LAW   ACTIONS  317 

(2)  arbitration  and  award;    (3)  former  recovery;    (4)  release; 
and   (5)  estoppel. 

Rem.  The  injury  inflicted  by  a  trespass  upon  property, 
whether  real  or  jx'rsonal,  is  an  invasion  of  the  ri(]fhts  of  possession, 
not  necessarily  of  the  rights  of  ownership.  The  injury  is,  there- 
fore, complete  if  posse.smri/  ricjliU  are  violated,  and  in  an  action 
for  the  injury  it  is  sufficient  for  the  plaintiff  to  allege  and  prove, 
as  for  the  defendant  to  deny  and  disj^rove,  the  lawful  pos.session 
of  the  plaintiff  at  the  time  the  injury  is  said  to  have  been  com- 
mitted. Where  (juestions  of  ownership  are  raised  in  such  actions 
it  is  for  the  purj)ose  of  supporting  or  contradicting  the  claim  of 
lawful  possession  on  which  the  plaintiff's  right  of  action  depends. 
Read:  Chitty  on  Pleading,  pp.  534-542. 


§  287.     Of  the  Special  Defences  to  Actions  of  Trespass  on  the 
Case. 

In  actions  of  trespass  on  the  case  the  defences  which  deny 
the  original  existence  of  the  cause  of  action  differ  according  to 
the  nature  of  the  cause  alleged,  namely;  whether  it  was  a 
wrongful  act  producing  indirect  and  conse(juential  injuries, 
or  was  the  mere  omission  of  a  legal  duty.  If  it  were  a  wrong- 
ful act,  producing  consequential  injuries,  its  defence  consists 
in  a  denial  (1)  that  the  described  act  was  performed  by  the 
defendant;  or  (2)  that  it  resulted  proximately  in  the  alleged 
injurious  consequences;  or  (3)  that  the  described  act  was  un- 
lawful. If  it  were  the  omission  of  a  legal  duty  the  defendant 
may  deny  either  (1)  the  existence  of  the  legal  duty;  or  (2)  the 
neglect  of  duty;  or  (3)  the  occurrence  of  the  alleged  injurious 
consequences;  or  (4)  that  the  alleged  injurious  consequences 
would  have  resulted  from  the  neglect  had  not  the  plaintiff  by 
his  own  negligence  contributed  thereto.  The  defences  which 
avoid  the  cau.se  of  action  are  (1)  accord  and  satisfaction; 
(2)  arbitration  and  award ;  (S"*  former  recovery ;  (4)  release ; 
and  (5)  estoppel. 

Rem.  Actions  on  the  case  often  involve  questions  of  con- 
tract growing  out  of  transactions  in  which  fraud,  negligence,  and 
other  indirect  wrongs  are  made  the  basis  of  complaint.  In  these 
the  same  issues  may  be  raised,  and  the  same  defences  made,  as 
in  actions  ex  contractu. 

Read:  Chitty  on  Pleading,  pp.  518-530. 

\ 


318  ELEMENTARY   LAW  §§  288,  289 

§  288.     Of  the  Special  Defences  in  Actions  of  Trover. 

In  actions  of  trover  the  original  existence  of  the  cause  of 
action  is  denied  on  the  ground  either  (1)  that  at  the  time  of 
the  alleged  conversion  the  plaintiff  had  no  actual  possession 
of  the  property  described,  and  no  right  of  immediate  posses- 
sion which  he  could  assert  against  the  defendant;  or  (2)  that 
the  alleged  conversion  never  occurred,  either  (a)  because  the 
defendant  never  assumed  to  exercise  any  dominion  over  the 
property;  or  (b)  because  the  dominion  which  he  exercised 
was  lawfully  assumed  in  his  capacity  of  owner,  bailee,  licensee, 
or  officer  serving  legal  process.  The  defences  claiming  the 
avoidance  of  the  cause  of  action  are  (1)  accord  and  satisfaction; 
(2)  arbitration  and  award;  (3)  former  recovery;  (4)  re- 
lease;  and  (5)  estoppel. 

Rem.  Conversion  like  trespass  invades  only  possessory 
rights,  and  ownership  is,  therefore,  not  in  issue  nor  properly  in 
evidence  except  as  it  may  tend  to  show  possession,  or  a  right  to 
immediate  possession,  at  the  date  of  the  alleged  conversion. 

Read:  Chitty  on  Pleading,  pp.  530-534. 

§  289.     Of   the   Special   Defences  in  Actions   of   Replevin   and 
Detinue. 

Defences  denying  the  cause  of  action  in  replevin  and  detinue 
are  (1)  that  at  the  time  of  the  alleged  seizure  or  detention  the 
plaintiff  had  no  actual  possession  of  the  chattels,  and  no  right 
of  immediate  possession  which  he  could  maintain  against  the 
defendant;  or  (2)  that  the  defendant  did  not  seize  or  did  not 
detain  the  chattels;  or  (3)  that  the  seizure  or  detention  which 
occurred  was  lawful,  being  either  (a)  a  levy  of  distress;  or 
(b)  a  seizure  under  legal  process;  or  (c)  a  taking  or  detention 
by  license  of  the  plaintiff;  or  (d)  a  detention  in  the  exercise 
of  the  legal  rights  of  a  bailee,  or  of  a  finder  without  knowledge 
of  the  true  owner.  Defences  avoiding  the  cause  of  action  are 
(1)  accord  and  satisfaction;  (2)  arbitration  and  award;  (3) 
former  recovery;    (4)  release;    (5)  estoppel. 

Rem.  Proceedings  in  the  application  of  extra-judicial  reme- 
dies to  the  protection  or  recovery  of  property,  such  as  recaption, 
the  abatement  of  nuisances,  and  the  like,  are  of  the  nature  of 


§§  290,  291      DEFENCES  TO  COMMON  LAW  ACTIONS     319 

legal  process  and  may  be  urged  as  defences  under  that  general 
class  in  actions  of  trespass,  trover,  and  replevin.  In  replevin, 
where  the  defendant  not  only  defends  his  own  acts  but  claims 
a  return  of  the  replevied  property,  his  defence  assumes  a  two- 
fold aspect,  —  as  to  one  of  which  he  is  a  true  defendant,  and  as 
to  the  other  a  true  plaintiff  seeking  the  vindication  of  his  own 
rights  in  the  property. 

Read:  Chitty  on  Pleading,  pp.  516,  533,  534. 

§  290.     Of  the  Special  Defences  in  Actions  of  Ejectment. 

In  actions  of  ejectment  a  denial  of  the  cause  of  action  asserts 
either  (1)  that  at  the  time  of  the  alleged  WTongful  entry  of 
the  defendant  the  plaintiff  had  no  actual  seisin  or  possession  of 
the  Jand,  either  by  himself  or  by  his  tenant,  and  neither  at  that 
time  nor  at  any  subsequent  time  has  had  a  right  to  its  immediate 
possession  as  against  the  defendant;  or  (2)  that  the  defendant 
never  entered  on  the  land;  or  (3)  that  the  defendant's  entry 
was  not  a  disseisin  or  an  ouster,  but  a  mere  trespass;  or  (4) 
that  the  defendant  entered  lawfully,  either  (a)  in  his  own  right ; 
or  (b)  in  the  right  of  one  whose  title  was  superior  to  that  of 
the  plaintiff;  or  (c)  in  pursuance  of  a  judgment  in  his  favor 
to  which  the  plaintiff  was  a  party  or  a  privy.  In  avoidance  of 
the  cause  of  action  the  defences  are  (1)  accord  and  satisfaction ; 
(2)  arbitration  and  award;  (3)  former  recovery;  (4)  release; 
and  (5)  estoppel. 

Rem.  In  actions  of  ejectment  the  title  to  the  land  is  called  in 
question,  since  the  injury  for  which  the  action  is  brought  is  not 
a  mere  trespass,  but  is  the  assertion  by  the  intruder  of  his  own 
rights  of  ownership  in  the  land,  either  as  a  freeholder  \\'ith 
seisin  or  as  the  tenant  of  an  estate  less  than  freehold.  When 
the  intrusion  is  in  reality  a  simple  trespass  the  action  must  be 
trespass  quare  rlaiisiim,  unless  the  conduct  and  claims  of  the 
intruder  are  so  ambiguous  that  the  plaintiff  has  a  right  of  election 
as  to  the  form  of  action  he  will  bring. 

Read:  Chitty  on  Pleading,  p.  542. 

§  291.     Of  the  Special  Defences  in  Extraordinary  and  Auxiliary 
Actions. 

The  defences  to  extraordinary  and  auxiliary  actions  con- 
sist chiefly  of  denials  of  the  material  allegations  of  the  petitioner. 


320  ELEMENTARY  LAW  §  291 

Thus  in  an  application  for  a  mandamus  they  are  (1)  that  the 
petitioner  has  no  legal  interest  in  the  performance  of  the  act 
for  whose  enforcement  he  applies;  or  (2)  that  he  has  other 
adequate  remedies  for  its  non-performance;  or  (3)  that  the 
act  itself  is  of  a  mere  private,  not  a  pubhc,  character;  or  (4) 
that  the  act  is  discretioniiry,  not  obligatory;  or  (5)  that 
the  act  is  impossible;  or  (6)  that  the  legal  duty  to  perform  the 
act  does  not  devolve  upon  the  respondent;  or  (7)  that  the  act 
has  already  been  performed.  In  an  application  for  a  procedendo 
the  defence  may  be  (1)  that  no  such  suit  is  pending  in  the  in- 
ferior court;  or  (2)  that  the  suit  is  not  delayed;  or  (3)  that 
the  delay  is  justifiable,  for  causes  named;  or  (4)  that  the 
petitioner  has  no  such  interest  in  the  suit  as  entitles  him  to  ask 
for  this  relief.  In  an  application  for  a  prohibition  the  respond- 
ent may  affirm  (1)  that  no  such  action  as  that  of  which  the 
plaintiff  complains  is  contemplated  or  in  progress;  or  (2)  that 
such  action  is  within  the  jurisdiction  of  the  respondent;  or 
(3)  that  the  petitioner  has  no  interest  which  will  be  affected  by 
such  action;  or  (4)  that  the  petitioner  has  another  adequate 
remedy.  In  an  application  for  a  quo  warranto  for  the  usurpation 
of  an  office  the  defences  are  (1)  that  the  office  is  not  public, 
but  private;  or  (2)  that  the  respondent  does  not  hold  or  claim 
the  office;  or  (3)  that  the  respondent  is  the  lawful  incumbent; 
or  (4)  that  the  petitioner  has  no  such  interest  in  the  office  as 
entitles  him  to  interfere.  In  a  quo  warranto  for  tlie  usurpation, 
non-user,  or  abuse  of  a  franchise  the  defence  consists  (1)  in  a 
denial  of  the  alleged  acts  or  omissions;  or  (2)  in  their  justi- 
fication. In  an  application  for  a  habeas  corpus  the  respondent 
may  (1)  deny  the  imprisonment;  or  (2)  assert  its  lawfulness  as 
(a)  in  the  exercise  of  a  family  right;  or  (b)  in  pursuance  of 
legal  process.  In  an  action  of  garnishment  the  defences  em- 
brace every  claim,  negative  or  positive,  which  might  have  been 
set  up  by  the  garnishee,  if  he  had  been  sued  by  his  original 
creditor  or  bailor.  In  a  scire  facias  to  enforce  a  record  the  de- 
fence may  be  (1)  that  the  obligation  evidenced  by  the  record 
has  already  been  fulfilled;  or  (2)  that  it  has  been  avoided 
(a)  by  an  accord  and  satisfaction;  or  (b)  by  the  substitution 
of  some  other  obligation ;  or  (c)  by  release ;  or  (d)  by  estoppel. 
In  a  scire  facias  to  vacate  or  set  aside  a  record  the  defence  either 


§  292  DEFENCES   TO   COMMON  LAW  ACTIONS  321 

(1)  denies  the  facts  on  which  the  claim  is  based;  or  (2)  con- 
troverts the  legal  doctrines  by  which  the  petitioner  supports  his 
claim;  or  (3)  urges  an  estoppel.  In  a  writ  of  error  the  de- 
fendant may  affirm  (1)  the  conformity  of  the  proceedings  in  all 
respects  to  the  rules  of  law;  or  (2)  that  whatever  errors  were 
committed,  none  of  them  were  prejudicial  to  the  plaintiff.  To 
these  actions,  as  well  as  to  the  ordinary  suits  at  law,  the  uni- 
versal defences  based  on  want  of  jurisdiction,  or  an  improper 
institution  of  the  suit,  are  applicable. 

Rem.  Statutory  actions  are  either  ordinary  actions,  extended 
in  their  operation  and  effect  by  the  provisions  of  local  statutes ; 
or  they  are  new  and  peculiar  actions  created  by  statute,  and 
more  or  less  analogous  to  ordinary  actions  in  their  scope  and 
methods  of  procedure.  The  special  defences  in  these  actions 
are  the  same  as  those  in  ordinary  actions  so  far  as  the  analogy 
obtains ;  as  to  their  peculiar  features  they  are  governed  by  the 
local  law. 

Read:  Chitty  on  Pleading,  p.  513. 

§  292.     Of  the  Defences  under  the  New  Procedure. 

All  those  defences  which  affect  the  substance  of  the  con- 
troversy, denying  the  existence  of  the  alleged  cause  of  action 
or  asserting  its  avoidance,  are  the  same  under  the  New  Pro- 
cedure as  under  the  ancient  rules  of  the  common  law.  So  also 
are  those  defences  which  allege  a  want  of  jurisdiction  in  the 
court,  or  dispute  the  right  of  action  on  the  ground  of  a  joint 
wrongful  enterprise,  or  equal  fault,  or  the  Statute  of  Limita- 
tions, or  an  estoppel.  Defences  based  on  the  improper  institu- 
tion of  the  suit  or  on  the  want  of  capacity  in  the  parties  to  sue 
and  be  sued,  or  on  the  insufficiency  of  the  process  or  its  service, 
or  on  the  immaturity  of  the  cause  of  action,  or  on  the  pen- 
dency of  a  prior  suit  likewise  have  the  same  significance  in 
both  forms  of  Procedure.  But  defences  arising  from  the  non- 
joinder, misjoinder,  or  misdescription  of  parties  have  lost  their 
practical  importance  under  the  New  Procedure,  since  the 
absence  of  necessary  parties  is  curable  by  their  addition ;  the 
presence  of  imnecessary  parties  by  their  dismissal ;  and  the  mis- 
description of  the  ])arties  by  amendment. 

Rem.  Under  the  New  Procedure  also  a  wide  latitude  is  given 
to  the  introduction  of  cross-actions  by  the  defendant,  —  such 

21 


322  ELEMENTARY   LAW  §  293 

as  the  set-off  of  debts  in  his  own  favor  against  those  sued  on  by 
the  plaintiff;  or  the  recowpment  of  damages  for  the  nonfulfilment 
by  the  plaintiff  of  some  part  of  the  contract  which  forms  the 
subject-matter  of  the  controversy;  or  a  counterclaim  for  an 
independent  wrong  which  he  has  sustained  from  the  plaintiff. 
These  cross-actions,  some  of  which  were  introduced  by  statute 
into  the  common-law  procedure,  have  a  double  aspect,  —  as 
suits  against  the  plaintiff  and  as  defences  against  the  plaintiff's 
action;  and  are  in  the  nature  of  an  accounting  which  leaves  a 
balance  only  to  be  paid  to  the  prevailing  party  to  the  suit. 

Read:  Andrews,  American  Law,  §§  635-641; 
Bliss  on  Code  Pleading,  §§  323-364; 
Maxwell  on  Code  Pleading,  pp.  396-549. 


SECTION    III 

OF   THE   PARTIES   TO    ACTIONS   IN   THE   COURTS   OF   COMMON   LAW 

§  293.     Of  the  Parties-PlaintifE  in  Actions  Ex  Contractu. 

In  every  ordinary  action  in  the  courts  of  common  law  the 
party-plaintiff  must  be  the  person  or  persons  whose  legal  right 
has  been  violated  by  the  alleged  wrong.  In  actions  ex  con- 
tractu the  right  violated  by  the  wrong  is  that  of  the  person  in 
whom  the  legal  interest  in  the  contract  was  vested  at  the  time 
the  contract  was  broken.  This  person  may  be  the  original 
promisee,  or  one  to  whom  the  legal  interest  in  the  contract  has 
been  transferred  by  assignment  or  by  operation  of  law.  Where 
one  person  has  a  legal,  and  another  an  equitable,  interest  in  a 
contract  at  the  time  of  the  breach  only  the  former  can  be  plain- 
tiff in  an  action  at  law ;  the  remedy  of  the  latter,  if  he  has  any, 
is  in  a  court  of  equity.  Where  the  legal  interest  in  a  contract 
vests  in  several  persons  jointly,  and  not  severally,  they  must 
all  be  plaintiffs;  where  it  vests  in  them  severally,  and  not 
jointly,  they  cannot  join  but  each  must  bring  his  separate 
action.  Where  of  several  persons,  who  had  a  joint  legal  in- 
terest in  a  contract,  some  are  dead  the  survivors  only  consti- 
tute the  plaintiff;  and  where  a  person  dies,  in  whom  resided 
a  sole  or  several  legal  interest  in  a  contract,  his  executor  or 
administrator  is  the  proper  plaintiff.  An  assignee  in  bank- 
ruptcy should  be  made  plaintiff  in  actions  upon  contracts  in 
which  the  bankrupt  has  a  legal  interest.     In  suits  upon  con- 


§  294  PARTIES  TO   COMMON  LAW   ACTIONS  323 

tracts  in  which  a  married  woman  has  a  legal  interest  her  hus- 
band is  the  proper  plaintiff  in  the  absence  of  a  statute  conferring 
upon  her  the  power  to  sue,  —  she  being  joined  wnth  him  as 
plaintiff  in  actions  upon  contracts  made  by  her  before  her 
coverture,  and  in  actions  for  rent  and  other  obligations  in 
respect  to  her  freehold  estates  in  real  property  which  had 
accrued  to  her  while  still  unmarried. 

Rem.  Every  action  at  law  requires  the  participation  of  two, 
and  of  only  two,  antagonistic  parties.  A  party  to  an  action  may 
consist  of  any  number  of  persons  if  they  are  so  related  to  one 
another  as  to  be  able  legally  to  claim  a  single  right,  or  to  commit 
a  single  wrong.  Any  person  may  be  a  plaintiff  or  defendant, 
unless  some  abnormality  of  status  deprives  him  of  the  capacity 
to  sue  or  of  the  liability  to  be  sued.  Incapacity  to  s^ie  ordinarily 
attaches  to  infants,  the  insane,  persons  under  guardianship, 
married  women,  and  alien  enemies.  Immunity  from  suit  resides 
in  the  State  considered  as  a  corporation,  in  the  ambassadors  and 
other  diplomatic  representatives  of  foreign  States,  and  in  higher 
judicial  officers  in  reference  to  acts  within  their  jurisdiction.  In 
every  common-law  action  certain  persons  stand  in  such  relations 
to  the  legal  right  invaded  that  they,  and  they  only,  must  be  made 
plaintiffs ;  other  persons  occupy  such  relations  to  the  wrong  that 
they  and  all  of  them  may  be,  and  in  certain  cases  must  be,  parties- 
defendant.  Any  omission  of  the  necessary  parties,  or  any  inser- 
tion of  unnecessary  parties,  would  be  fatal  to  the  action,  unless 
the  error  were  cured  by  amendment,  since  it  is  essential  to  a 
proper  and  just  judgment  that  the  true  parties  and  no  others 
should  be  before  the  court  as  litigants. 

Read:  Andrews,  American  Law,  §§  686-700,  709; 
Chitty  on  Pleading,  pp.  2-38; 
Stephen  on  Pleading,  §§  19-27,  33,  34,  43; 
Gould  on  Pleading,  ch.  iv,  §§  52-65; 
Perry  on  Pleading,  pp.  116-124; 
Shipman  on  Pleading,  §§  26-29. 


§  294.     Of  the  Parties-Defendant  in  Actions  Ex  Contractu. 

The  party-defeiidant  in  an  action  at  law  must  always  be  the 
person  or  persons  by  whom  the  alleged  wrong  has  been  com- 
mitted. In  actions  ex  contractu  this  is  the  j^crson  on  whom  rested 
the  obligation  to  fulfil  the  contract,  and  by  whom  therefore,  if 
by  any  one,  the  contract  has  been  broken.  If  the  contract 
was  an  express  contract  the  duty  to  fulfil  it  rests  upon  the  prom- 


324  ELEMENTARY  LAW  §  295 

isor  by  whom  it  was  originally  made;  if  it  was  an  implied 
or  a  quasi  contract,  the  obligation  to  perform  it  is  imposed 
upon  the  person  who,  under  all  the  circumstances  of  the  case, 
is  subject  to  the  legal  liability.  Several  persons  binding  them- 
selves jointly  by  their  contract  must  be  joined  also  as  defend- 
ants for  its  breach,  provided  all  survive ;  if  some  are  dead,  only 
the  others  are  named  as  defendants.  Where  each  of  several 
parties  to  the  same  contract  is  severally  and  not  jointly  bound 
thereby  each  must  be  sued  separately  for  his  own  breach. 
Where  the  contract  is  several  as  well  as  joint  each  may  be 
separately  sued  or  all  may  be  made  joint  defendants  in  one 
action,  as  the  plaintiff  may  elect;  but  the  plaintiff  cannot  sue 
some  separately  and  the  others  jointly.  If  a  promisor  dies 
leaving  his  contract  unfulfilled  and  his  liability  for  non- 
performance legally  survives  him,  —  as  it  may  in  contracts 
affecting  property  rights,  —  the  true  defendant  is  his  executor 
or  administrator.  In  actions  on  the  contracts  of  a  married 
woman  made  before  her  marriage,  and  in  reference  to  which 
her  liability  continues  during  coverture,  her  husband  must  be 
joined  with  her  as  a  defendant. 

Rem.  Where  the  relation  of  persons  to  a  contract  is  altered 
by  novation,  in  which  a  new  promisor  is  substituted  for  the  one 
bound  by  the  original  agreement,  the  new  promisor  must  be 
made  defendant  in  a  suit  upon  the  contract,  although  the  terms 
and  obligations  of  the  contract  itself  remain  unchanged,  since 
the  novation  operates  to  discharge  the  former  obligor  from  fur- 
ther liability. 

Read:  Andrews,  American  Law,  §§  701,  702; 
Chitty  on  Pleading,  pp.  38-68; 
Stephen  on  Pleading,  §§35,  36,  43; 
Gould  on  Pleading,  ch.  iv,  §§  66-73; 
Perry  on  Pleading,  pp.  124-130; 
Shipman  on  Pleading,  §§  26-29. 

§  295.     Of  the  Parties-PlaintiS  in  Actions  Ex  Delicto. 

In  actions  ex  delicto  for  wrongs  against  the  rights  of  personal 
security  and  personal  liberty  the  proper  plaintiff  is  the  person 
whose  security  or  liberty  has  been  invaded.  Where  several 
persons  have  suffered  in  these  rights,  by  the  same  act  of  the 
same  defendant,  each  must  bring  his  separate  action  unless 


§  296  PARTIES   TO  COMMON  LAW  ACTIONS  325 

as  may  sometimes  occur,  the  loss  resulting  from  the  injury 
is  joint.  In  actions  for  wrongs  against  the  right  of  property 
the  plaintiff  must  be  the  person  or  persons  whose  legal  interest 
in  the  property,  as  owner  or  possessor,  has  been  affected  by 
the  alleged  injury.  Where  this  legal  interest  is  vested  in  several 
persons  jointly  all  together  constitute  the  joint  plaintiff;  but 
where  each  has  a  several  interest  each  must  sue  alone.  Where 
the  legal  interest  is  in  one  person,  and  the  equitable  interest  in 
another,  only  the  former  can  be  plaintiff  in  a  suit  at  law.  In 
an  action  ex  delicto  which  survives  the  injured  party,  —  as  do 
many  of  those  which  lie  for  injuries  to  property,  —  the  execu- 
tor or  administrator  of  the  decedent  is  the  proper  plaintiff;  but 
where  of  several  persons,  who  were  jointly  interested  in  the 
property  at  the  date  of  the  injury,  some  are  dead  only  the  sur- 
vivors can  be  joined  as  plaintiffs.  In  actions  for  the  violation 
of  family  rights  that  party  to  the  family  relation,  whose  legal 
right  in  the  other  party  has  been  infringed  by  the  defendant, 
nmst  be  the  plaintiff. 

Rem.  Rights  of  action  ex  delicto  are  sometimes  assignable  in 
connection  with  an  assignment  of  the  property  upon  which  the 
injury  has  been  inflicted,  —  as  where  the  right  to  sue  for  past 
infringements  of  a  patent  may  be  transferreil  with  the  patent  to 
an  assignee.  In  such  cases  the  assignee  may  bring  the  action  in 
his  own  name  as  plaintiff. 

Read:  Andrews,  American  Law,  §§  703,  704; 
Chitty  on  Pleading,  pp.  68-85; 
Stephen  on  Pleading,  §§  37,  38,  43; 
Gould  on  Pleading,  ch.  iv,  ?§  52-57; 
Perry  on  Pleading,  ])p.  130-132; 
Shipman  on  Pleading,  §§  30,  31. 

§  296.     Of  the  Parties-Defendant  in  Actions  Ex  Delicto. 

In  actions  ex  delicto  the  person  who  commits  the  injury, 
whether  by  himself  or  his  agents,  must  be  made  defendant. 
Where  several  persons  join  in  the  same  wrongful  act  each  may 
be  separately  sued,  or  all  may  be  joined  in  one  action,  as  the 
plaintiff  may  elect.  Upon  the  death  of  the  wrongdoer,  if  the 
action  survives,  —  as  it  may  when  the  wrong  has  benefited 
his  estate,  —  his  executor  or  administrator  should  be  made 
defendant.     In  actions  brought  against  a  marrieil  woman,  for 


326  ELEMENTARY  LAW  §  297 

torts  committed  by  her  either  before  or  after  marriage,  both 
husband  and  wife  must  be  named  as  defendants  unless  the 
local  statutes  otherwise  provide. 

Rem.  Wrongs  whose  effects  terminate  upon  personal  rights 
die  with  their  perpetrator,  and  hence  as  a  general  rule  no  action 
will  Ue  against  the  estate  of  a  deceased  person  for  injuries  in- 
flicted by  him  in  his  lifetime  on  the  persons  and  reputation  of 
other  parties.  But  where  his  wrongful  conduct  has  increased  the 
value  of  his  surviving  estate  as  in  some  cases  of  trespass  or  con- 
version, and  particularly  where  the  unlawful  increment  is  sepa- 
rable from  his  other  property,  his  legal  representatives  may  be 
compelled  by  proper  action  to  make  direct  restitution  or  adequate 
compensation  for  the  wrong. 

Read:  Andrews,  American  Law,  §§  705-707; 
Chitty  on  Pleading,  pp.  86-105 ; 
Stephen  on  Pleading,  §§  39-41,  43; 
Gould  on  Pleading,  ch.  iv,  §§  6G,  74-78; 
Perry  on  Pleading,  pp.  132-134; 
Sliipman  on  Pleading,  §§  30,  31. 

§  297.     Of  the  Parties  to  Extraordinary  and  Auxiliary  Actions. 

Extraordinary  and  auxiliary  actions  being  intended  in  all 
cases  to  compel  some  person  —  natural,  artificial,  or  official  — 
to  do  or  to  refrain  from  doing  some  act  in  aid  of  the  rights  of 
some  other  person,  public  or  private,  —  the  party-plaintiff  must 
always  be  the  person  whose  right  it  is  the  object  of  the  action 
to  protect,  or  some  one  moving  in  his  name  or  on  his  behalf. 
The  party-defendant,  for  the  same  reason,  must  be  the  person 
by  whose  act  or  forbearance  the  rights  of  the  plaintiff  are  to 
be  vindicated  or  preserved.  Subject  to  this  general  rule,  the 
more  precise  designation  of  the  parties  depends  upon  the  exact 
purpose  for  which  the  suit  is  brought. 

Rem.  In  extraordinary  and  auxiliary  actions  all  the  persons 
whose  rights  and  interests  are  to  be  directly  affected  by  the  final 
decision  of  the  controversy  have  a  right  to  appear  and  be  heard, 
and  therefore  must  at  some  stage  of  the  action  have  an  oppor- 
tunity to  become  parties  to  the  suit.  The  action  must  be  insti- 
tuted by  the  person  who  seeks  the  intervention  of  the  law,  or  by 
some  one  on  his  behalf;  and  against  the  person  whose  conduct 
deprives  the  plaintiff  of  the  enjoyment  of  his  rights;  but  as  the 
interests  of  other  persons  appear  from  time  to  time  to  be  involved 
they  also  must  be  made  plaintiffs  or  defendants  as  the  circum- 


§  298  PARTIES  TO  COMMON  LAW  ACTIONS  327 

stances  may  demand.  These  proceedings  may  thus  take  a  range 
indefinitely  wide,  until  complete  justice  to  all  parties  is  finally 
attained. 

Read:  Maxwell  on  Pleading  and  Practice,  §§  451-461,  767-772,  793, 
794,  806-817,  976-978,  987; 
Foster's  First  Book  of  Practice,  pp.  245-250,  256-260,  269; 
Bliss  on  Code  Procedure,  §§  449,  455,  460. 

§  298.     Of  the  Parties  to  Actions  under  the  New  Procedure. 

The  New  Procedure,  in  reducing  all  actions  to  one  common 
form,  has  varied  the  rules  concerning  parties  to  correspond 
wdth  the  far  greater  latitude  allowed  in  courts  of  equity.  The 
rules  of  this  Procedure  permit  the  real  "party  in  interest  — 
that  is,  the  person  to  whom  the  benefits  of  the  action,  if  suc- 
cessful, would  accrue  —  to  be  the  party-plaintiff  in  all  actions 
ex  contractu.  They  allow  one  person  to  sue  on  behalf  of  many 
where  all  have  a  common  interest,  or  where  they  are  too  nu- 
merous to  be  grouped  together  in  one  suit,  and  yet  to  afford 
to  each  a  separate  remedy  would  require  an  unreasonable 
multij)licity  of  actions.  They  sanction  the  joinder  of  parties 
who  have  a  common  though  not  always  a  joint  interest  or  lia- 
bility; and  authorize  the  plaintiff  to  summon  as  defendants 
those  persons  who  ought  to  be,  but  refuse  to  be,  his  co-plain- 
tiffs. They  also  adopt  the  provisions  of  many  special  statutes 
conferring  upon  persons,  equitably  interested  in  the  subject 
of  the  controversy,  the  right  to  bring  an  action  in  the  name  of 
the  person  having  the  legal  interest,  even  against  his  will,  and 
to  control  the  action  as  far  as  may  be  necessary  to  protect  their 
equitable  estates. 

Rem.  These  general  features  of  the  New  Procedure  are  modi- 
fied and  extended  in  many  particulars  by  the  local  statutes,  cus- 
toms, and  rules  of  court  of  the  States  in  which  this  Procedure  has 
been  adopted.  These  rules  form  part  of  the  attempt  to  make  the 
procedure  of  tb.c  courts  of  common  law  conform  to  the  sim- 
plicity and  flexibility  of  the  procedure  of  equity  and  admiralty 
courts,  without  entirely  sacrificing  the  brevity  and  precision  of 
the  ancient  methods.  The  success  of  the  experiment  is  yet  to 
be  determined. 

Read:  Andrews,  American  Law,  §§  635-641; 

Stephen  on  Pleading,  §§  28-32; 

Bliss  on  Code  Pleading,  §§  20-71,  82-95; 

Maxwell  on  Code  Pleading,  pp.  20-67. 


328  ELEMENTARY   LAW  §  299 

SECTION  IV 

OF    THE    PROCEDURE    IN    ACTIONS    IN    THE    COURTS    OF 
COMMON    LAW 

§  299.     Of  Process:  its  Service  and  Return. 

The  first  step  in  the  institution  of  an  action  at  law  is  the 
issue  of  process  and  its  service  upon  the  defendant,  notifying 
him  to  appear  in  court  and  answer  to  the  plaintiff's  claim. 
Process  is  a  general  term,  embracing  all  the  formal  mandates 
of  the  court  which  are  issued  during  the  progress  of  a  cause, 
in  order  to  bring  persons  or  property  within  its  jurisdiction,  or 
to  carry  its  decrees  into  effect.  Process  is  either  (1)  Original 
Process ;  or  (2)  Mesne  Process ;  or  (3)  Final  Process.  Original 
process  is  the  mandate  by  which  the  defendant  is  directed  to 
appear  and  answer.  Mesne  process  includes  all  intermediate 
mandates  by  which  the  court  secures  the  presence  of  persons, 
or  the  custody  of  property,  between  the  issue  of  the  original 
and  final  process.  Filial  process  is  the  mandate  by  which  the 
judgment  of  the  court  is  enforced.  The  principal  forms  of 
an  original  writ  are:  (1)  the  summons;  (2)  the  capias  ad 
respondendum;  and  (3)  the  attachment.  A  summons  is  a 
mandate  directed  to  the  sheriff  or  other  proper  officer,  com- 
manding him  to  notify  the  defendant  to  appear  in  court  at  a 
day  named  therein,  which  is  called  the  return-day,  then  and 
there  to  answer  to  the  plaintift"'s  claim.  It  is  served  by  the  officer 
by  reading  it  to  the  defendant,  or  by  delivering  to  him  a  true 
and  attested  copy  thereof,  or  by  leaving  such  a  copy  at  his  last 
usual  place  of  abode,  or  in  such  other  manner  as  the  local  law 
may  direct.  In  actions  in  rem,  under  the  laws  of  some  of  our 
States,  if  the  defendant  cannot  be  found  and  has  no  usual  place 
of  abode  within  the  jurisdiction  of  the  State,  service  may  be 
made  by  publishing  a  copy  in  some  designated  newspaper. 
A  capias  ad  respondendum  is  a  mandate  directing  the  officer 
to  arrest  the  body  of  the  defendant,  and  safely  keep  him  until 
he  is  discharged  by  due  course  of  law.  It  is  served  by  the  officer 
by  taking  the  defendant  into  his  physical  custody,  and  de- 
taining him  until  he  is  enlarged  on  bail,  or  committed  to  prison 
in  satisfaction  of  the  judgment,  or  released  on  habeas  corpus 


1 


§  299         PROCEDURE   IN  COMMON  LAW   ACTIONS  329 

or  by  other  lawful  methods.  This  process  is  available  only 
in  cases  where  the  defendant  is  subject  to  imprisonment  on 
execution  if  a  judgment  should  be  obtained  against  him.  An 
attachment  is  a  mandate  directing  the  officer  to  seize  and  hold 
the  property  of  the  defendant  so  that  it  may  be  forthcoming  at 
the  levy  of  the  execution.  It  is  served  by  the  officer  by  tak- 
ing the  property  into  his  manual  possession  so  far  as  its  nature 
and  situation  will  permit,  and  holding  it  until  it  is  released 
by  further  {proceedings  or  aj^propriated  to  satisfy  the  judgment 
in  the  suit.  In  both  the  capias  and  the  attachment  a  sum- 
mons is  incorporated,  imless  a  formal  summons  has  been  pre- 
viously served.  The  officer,  having  obeyed  the  mandate  of 
his  process,  must  then  make  his  return  thereon  by  endorsing 
on  it  a  short  account  of  his  proceedings  under  it,  and  leave  the 
endorsed  process,  on  or  before  the  return  day,  with  the  clerk 
of  the  court. 

Rem.  Original  and  final  process,  and  such  mesne  process  as 
may  be  directed  against  the  defendant  or  his  property,  are  known 
as  writs.  In  ancient  times  suits  were  commenced  by  an  original 
writ,  issuing  out  of  chancery  in  the  king's  name,  stating  the  cause 
of  action  in  a  few  words,  and  commanding  the  officer  to  whom  it 
was  directed  to  order  the  defendant  to  satisfy  the  jilaintiff's 
claim;  and,  if  he  failed  to  do  so,  to  summon  him  to  apjiear  in 
court  at  a  day  named  in  the  writ.  If  the  defendant  neither  com- 
plied with  the  order,  nor  appeared  in  court,  a  second  writ  issued 
in  the  form  of  a  summons,  a  capias  ad  respondendum,  or  an  at- 
tachment. Later,  the  practice  of  issuing  the  first  writ  was  aban- 
doned, and  the  other  three  became  original  writs.  In  many 
details  the  form,  effect,  issue,  and  service  of  these  writs  are 
regulated  by  local  statutes.  It  is,  however,  generally  the  rule  in 
all  our  States :  (1)  that  the  service  of  the  summons  marks  the  date 
of  the  commencement  of  the  suit ;  (2)  that  no  capias  can  issue 
in  a  purely  contract  action,  nor  in  an  action  sounding  in  tort  if 
it  really  enforces  a  contract  liability,  exccj^t  it  be  an  action  for 
the  breach  of  a  promise  of  marriage  ;  (3)  that  where  the  defend- 
ant is  arrested  on  a  lawful  capias  he  htis  a  right  to  be  at  once 
enlarged  on  common  bail  given  to  the  officer,  conditioned  that 
he  will  appear  to  answer;  (4)  that  an  attachment  may  be 
granted  against  such  property  of  an  absconding  debtor  as  may 
remain  within  the  jurisdiction  of  the  court,  and  that  his  chattels 
in  the  hands  of  his  agents,  trustees,  or  bailees,  as  well  as  his 
choses   in  action,    may    be    reached   by   garnishment;    (5)  that 


330  ELEMENTARY  LAW  §  300 

property  attached  or  garnisheed  may  be  released  upon  the  sub- 
stitution of  adequate  security.  In  several  States  an  attachment 
may  issue  at  the  commencement  of  any  action  though  the  de- 
fendant may  be  solvent,  within  the  reach  of  process,  and  certain 
to  appear. 

Read:  3  Bl.  Com.,  pp.  272-292; 

Stephen  on  Pleading,  §§  63-65,  87; 

Perry  on  Pleading,  pp.  137-158; 

Shipman  on  Pleading,  §§  36-40; 

Maxwell  on  Pleading  and  Practice,  §§  29-69,  400-450; 

Foster's  First  Book  of  Practice,  pp.  221-226,  233-244. 


§  300.     Of  Appearance  and  Bail. 

It  is  the  duty  both  of  the  plaintiff  and  the  defendant  to  appear 
in  court  on  the  return-day  of  the  writ.  If  the  plaintiff  fails  to 
appear  the  defendant  is  entitled  to  a  judgment  of  nonsuit 
against  him,  which  dismisses  the  action  and  compels  him  to 
commence  anew.  If  the  defendant  fails  to  appear  the  plain- 
tiff is  entitled  to  a  judgment  by  default,  which  is  conclusive 
against  the  defendant  on  the  matter  in  controversy.  Where 
a  defendant,  who  has  been  enlarged  on  common  bail,  fails  to 
appear  his  bond  may  be  declared  forfeited,  and  a  scire  facias 
brought  against  the  surety  to  collect  the  penalty.  When  a 
defendant,  who  has  been  enlarged  on  common  bail,  duly  ap- 
pears to  answer,  the  bail  is  discharged;  but  the  plaintiff  may 
obtain  an  order  from  the  court  to  compel  the  defendant  to  give 
special  bail  to  the  action,  conditioned  that  he  will  abide  the  final 
judgment  of  the  court.  Until  this  order  is  obeyed  the  defend- 
ant cannot  answer  to  the  suit,  and  after  reasonable  opportunity 
to  procure  bail  has  been  given  him  a  final  judgment  may  be 
rendered  against  him  for  default  of  plea. 

Rem.  Formerly  the  parties  appeared  in  court  in  person  to 
assert  their  respective  claims,  and  this  is  still  permitted.  But 
for  the  past  seven  centuries  it  has  been  customary  for  them  to 
appear  by  their  attorneys  at  law,  who  are  recognized  officers  of 
the  court,  and  whose  names  entered  on  the  docket  on  behalf  of 
their  clients  constitute  a  sufficient  appearance  for  the  parties,  ex- 
cept when  the  client  is  out  on  common  bail  and  must  appear  in 
person  to  give  special  bail.  The  appearance  of  a  defendant  may 
be  general  or  special.  His  general  appearance  waives  all  objec- 
tions to  the  jurisdiction  of  the  court  over  his  person,  whether  on 


§  301        PROCEDURE   IN  COMMON  LAW  ACTIONS  331 

the  ground  of  his  residence,  his  misdescription  in  the  writ,  or  de- 
fects in  its  service  upon  him.  His  special  appearance  enables  him 
to  take  advantage  of  all  technical  errors  which  defeat  the  juris- 
diction of  the  court ;  and  must  be  made  in  person  since  his  ap- 
pearance by  attorney  admits  its  jurisdiction  over  him.  A  special 
appearance  must  be  stated  on  the  record  to  be  special,  or  it  will 
be  presumed  to  be  a  general  appearance.  An  appearance  by  the 
same  attorney  for  both  parties  usually  raises  the  presumption  that 
the  suit  is  collusive,  and  the  court  will  then  refuse  to  entertain  it ; 
but  in  amicable  suits,  brought  to  obtain  the  judicial  interpreta- 
tion of  a  will,  a  trust,  a  corporate  charter  and  the  like,  such  an 
appearance  is  sometimes  permitted. 

Read:  3  Bl.  Com.,  pp.  25-29,  273,  277,  278,  282,  287,  295,  296; 
Andrews,  American  Law,  §§  766,  771; 
Stephen  on  Pleading,  §§  88-91; 
Perry  on  Pleading,  pp.  158,  159; 
Shipman  on  Pleading,  §§  41-43; 
Foster's  First  Book  of  Practice,  §§  226-232. 


§  301.     Of  the  Pleadings:  their  Purpose,  Classes,  and  Order. 

The  second  step  in  the  prosecution  of  an  action  is  the  presen- 
tation of  the  pleadings.  Pleadings  arc  the  alternate  allegations 
of  the  plaintiff  and  defendant,  setting  forth  in  writing  their 
respective  claims.  Their  purpose  is  to  raise  certain  distinct 
issues  of  fact  or  law,  the  decision  of  which  by  the  court  will 
settle  the  whole  matter  in  controversy.  Every  action  at  law 
consists  of  two  assertions,  and  of  one  or  more  denials.  The 
plaintiff  asserts  (1)  that  a  certain  state  of  facts  exists;  (2)  that 
in  view  of  those  facts  he  is  by  law  entitled  to  that  redress  from 
the  defendant  which  his  action  claims.  The  defendant  denies 
either  (1)  that  the  alleged  facts  exist;  or  (2)  that  even  if  the 
facts  do  exist  the  j)laintift'  is  by  law  entitled  to  the  redress  he 
claims;  and  to  support  this  .second  denial  he  asserts  either 
(a)  that  the  court  to  which  the  action  is  brought  has  no  juris- 
diction over  the  parties  and  the  subject-matter  of  the  contro- 
versy; or  (b)  that  the  action  is  not  properly  instituted;  or 
(c)  that  uj)on  the  facts  alleged  the  law  affords  no  such  redress 
as  the  plaintiff  claims;  or  (d)  that  other  facts  exist,  not  stated 
by  the  plaintiff,  which  deprive  him  of  the  right  to  the  redress 
that  he  could  otherwise  obtain.  The  pleading  in  wiiich  the 
plaintiff   makes    his    two   assertions   is    called    the   declaration. 


332  ELEMENTARY   LAW  §  301 

The  pleading  in  which  the  defendant  denies  the  existence  of 
the  facts  alleged  by  the  plaintiff  is  called  a  'plea  in  bar.  The 
pleading  in  which  the  defendant  denies  the  jurisdiction  of  the 
court  is  called  a  -plea  to  the  jurisdiction.  The  pleading  in  which 
the  defendant  denies  the  proper  institution  of  the  suit  is  called 
a  flea  in  abatement.  The  pleading  in  which  the  defendant 
denies  the  legal  right  of  the  plaintiff  to  recover,  even  if  the  facts 
alleged  exist,  is  called  a  demurrer.  The  pleading  in  which  the 
defendant  denies  the  right  of  the  plaintiff  to  recover  on  the 
facts  alleged,  on  the  ground  that  other  facts  exist,  not  stated 
by  the  plaintiff,  which  deprive  him  of  the  right  that  he  could 
otherwise  enforce  is  called  a  special  flea  in  bar.  A  plea  to  the 
jurisdiction,  if  it  is  to  be  offered  at  all,  must  precede  all  other 
pleadings  except  the  declaration.  Pleas  in  abatement  must  be 
presented  before  the  pleadings  which  deny  the  matters  of  fact 
or  matters  of  law  asserted  by  the  plaintiff.  Demurrers  must 
be  offered  before  the  general  or  sj^ecial  plea  in  bar  that  con- 
troverts the  fact  to  which  the  legal  cjuestion  raised  by  the  de- 
murrer logically  belongs.  Pleadings  not  presented  in  their 
proper  order  are  waived  by  the  delinquent  party,  and  the 
allegations  which  could  have  been  denied  in  them  are  thus 
admitted  to  be  true. 

Rem.  Pleas  to  the  jurisdiction  and  in  abatement  are  classed 
as  dilatory  pleas,  because  they  delay  the  progress  of  the  action. 
Demurrers  receive  their  name  from  the  same  characteristic. 
Declarations  and  pleas  in  bar,  whether  general  or  special,  and 
the  altercations  following  them,  are  known  as  pleadings  to  the 
merits  of  the  action.  The  pleas  to  the  merits  subsequent  to  the 
plaintiff's  declaration  are  (1)  the  defendant's  plea  in  bar;  (2)  the 
p\a,intifi' s7-eplication;  (3)  the  defendant's  r^joiw^er;  (4)  the  plain- 
tiff's surrejoinder ;  (5)  the  defendant's  rebutter ;  (6)  the  plaintiff's 
surrebutter.  The  latter  stage  is  seldom  reached  in  modern 
pleading. 

Read:  3  Bl.  Com.,  pp.  293,  301,  310; 

Andrews,  American  Law,  §§  646-649,  723-725; 
Chitty  on  Pleading,  pp.  235,  262,  456,  457; 
Stephen  on  Pleading,  §§  1-18,  92,  93,  96,  97,  132-135; 
Gould  on  Pleading,  ch.  i,  §.§  1-25;  ch.  ii,  §§  1-43; 
Perry  on  Pleading,  pp.  159-164; 
Shipman  on  Pleading,  §§  44. 


I 


§  302        PROCEDURE   IN   COMMON  LAW   ACTIONS  333 

§  302.     Of  the  Contents  of  Pleadings:  Demurrers. 

Every  pleading  either  affirms  or  denies  a  matter  of  fact,  or 
raises  an  issue  of  law  by  asserting  that,  on  the  facts  set  forth 
in  the  last  pleading  of  the  opposite  party,  the  present  pleader 
is  legally  entitled  to  a  judgment  against  him.  The  pleading 
which  raises  an  issue  of  law  is  called  a  demurrer.  It  may  be 
employed  at  any  stage  in  any  class  of  pleadings.  The  isstie 
it  presents  may  relate  either  to  the  technical  form  in  which  the 
facts  are  stated  in  the  previous  pleading,  or  to  the  sufficiency 
of  the  facts,  however  stated,  to  sustain  the  legal  claim  in  support 
of  which  they  are  advanced.  A  demurrer  which  rests  in  whole 
or  in  part  upon  technical  errors  in  the  previous  pleading  is 
called  a  special  demurrer,  and  must  clearly  point  out  every 
error  of  which  it  complains.  A  demurrer  which  rests  upon  the 
insufficiency  of  the  facts,  however  stated,  is  called  a  general 
demurrer,  and  need  aver  only  that  the  previous  pleading  is  in- 
sufficient in  the  law.  Errors  of  form  are  waived  unless  im- 
mediately objected  to  by  special  demurrer;  errors  of  substance, 
due  to  the  insufficiency  of  the  facts  alleged,  if  not  objected  to 
by  general  demurrer,  may  sometimes  be  taken  advantage  of, 
after  the  trial  of  the  case,  by  proceedings  to  arrest  or  reverse 
the  judgment.  A  judgment  on  demurrer  was  formerly  con- 
clusive as  to  the  facts  recited  in  the  {previous  pleading  as  well 
as  to  their  legal  sufficiency,  but  in  modern  practice  the  defeated 
party  is  generally  allowed  to  amend  his  defective  pleading,  or 
to  plead  to  the  facts  if  the  demurrer  is  overruled. 

Rem.  Every  demurrer  must  pray  the  judgment  of  the  court 
upon  the  question  of  law  presented  thereby.  The  issue  thus  ten- 
dered must  be  accepted  by  the  opposite  party,  and  the  question 
is  then  submitted,  with  or  without  argument,  to  the  decision  of 
the  court;  and  until  this  decision  is  rendered  no  further  progress 
can  be  made  in  the  action.  In  reaching  its  conclusions  it  is  the 
duty  of  the  court  to  examine  the  whole  record,  and  to  give  judg- 
ment in  favor  of  that  party  in  whom  the  substantial  right  resides, 
unless  he  has  distinctly  based  his  action  on  some  other  ground. 

Rkad:  3  Bl.  Com.,  pp.  .314-321; 

Andrews.  Aniorican  Law.  §§  73.'>-738,  804; 
Chitty  oil  Pl(>;i«!iii<r,  pp.  (in'J-702; 
St^pluMi  on  riondinsr,  §§  103,  138-143,  177; 
Gould  on  Ploiuling,  vh.  ix,  §§  1-4G; 


334  ELEMENTARY   LAW  §  303 

2  Greenleaf,  Evidence,  §§  3-5; 
Perry  on  Pleading,  pp.  174,  232-240; 
Shipman  on  Pleading,  §§  46,  47,  170,  186; 

Bolles,  Important  English  Statutes,  p.  75,  Stat.  27  Eliz.,  Special 
Demurrers. 


§  303.     Of  the  Contents  of  Pleadings:  Traverses. 

A  direct  issue  of  fact  is  raised  by  a  pleading  called  a  "traverse. " 
A  traverse  is  a  formal  denial  of  the  facts  affirmed  in  the  last 
pleading  of  the  opposite  party.  Traverses  are  of  two  classes: 
(1)  Common  traverses;  and  (2)  Technical  traverses.  A  com- 
mon traverse  denies  all  the  material  allegations  of  the  previous 
pleading.  A  technical  traverse  contains  both  an  affirmation  and 
a  denial ;  an  affirmation  or  inducement  alleging  some  new  matter, 
or  some  new  aspect  of  the  matter  previously  alleged,  or  some 
distinct  portion  of  such  previous  matter;  and  then  a  denial 
of  whatever  else  that  pleading  may  contain.  This  technical 
traverse  is  employed  whenever  the  pleader  cannot  safely  admit 
or  deny  the  allegations  of  the  previous  pleading  as  a  whole, 
and  enables  him  to  admit  a  portion  and  deny  the  rest.  A 
common  traverse,  and  a  technical  traverse  which  does  not 
allege  new  matter,  tender  an  issue  in  which  the  opposite  party 
is  obliged  to  join,  and  the  question  of  fact  thus  raised  is  pre- 
sented to  the  court  or  jury  for  determination. 

Rem.  A  technical  traverse  may  be  either  general  or  special. 
A  general  technical  traverse  contains  a  general  assertion  of  mat- 
ters contradicting  the  material  allegations  of  the  previous  plead- 
ing, and  then  in  general  terms  denies  those  allegations.  For 
example,  where  the  defendant  in  an  action  for  an  assault  has 
pleaded  that  he  made  the  assault  in  self-defence.  Here  the  plain- 
tiff cannot  answer  by  a  common  traverse,  for  this  would  deny 
the  assault  as  well  as  the  defendant's  justification,  and  so  defeat 
the  action  altogether.  He  therefore  resorts  to  a  general  techni- 
cal traverse  in  which  he  states,  —  first,  that  the  defendant  com- 
mitted the  injury  of  his  own  wrong  {de  injuria  sua) ;  and  second, 
that  the  defendant  had  no  such  justification  {absque  tali  causa)  as 
he  claims.  A  special  tecluiical  traverse  avers  some  new  matter,  or 
new  legal  aspect  of  the  matter  already  presented,  in  contradiction 
of  a  special  allegation  of  the  prior  pleading ;  and  then  denies  that 
allegation  word  for  word.  Thus,  for  example,  in  an  action  on  a 
contract  under  seal,  where  the  defendant  pleads  that  he  executed 
the  contract  under  duress.    Here  the  plaintiff  cannot  use  a  com- 


§  304        PROCEDURE   IN  COMMON  LAW  ACTIONS  335 

mon  traverse,  and  so  deny  the  execution  of  the  contract,  but  in  a 
special  technical  traverse  he  can  assert  that  the  defendant  exe- 
cuted the  contract  of  his  own  free  will,  and  not  {nee  non)  by  duress. 
Or  again,  in  an  action  of  trespass  quare  clau.nim,  where  the  plain- 
tiff has  asserted  in  his  declaration  that  the  defendant  entered  on 
the  land  in  order  to  serve  legal  process,  and  while  there  exceeded 
his  authority  and  thereby  became  a  trespasser  ah  initio.  Here 
the  defendant  cannot  file  a  common  traverse,  for  that  would  deny 
his  own  official  character  and  errand ;  but  in  a  special  technical 
traverse  he  can  state  affirmatively  just  what  he  did  do  on  the  land, 
without  this  (absque  hoc)  that  those  acts  were  in  excess  of  his  offi- 
cial powers.  A  special  technical  traverse  does  not  tender  an 
issue,  but  concludes  with  an  offer  to  verify  the  new  matter  actu- 
ally or  apparently  alleged,  to  which  the  next  pleading  may  reply 
with  a  demurrer,  or  a  traverse,  or  a  pleading  in  confession  and 
avoidance. 

Read:  3  Bl.  Com.,  p.  313; 

Andrews,  American  Law,  §§  739,  743-750,  757; 

Chitty  on  Pleading,  pp.  631-651 ; 

Stephen  on  Pleading,  §§  154-165,  168,  170-174; 

Gould  on  Pleading,  ch.  vii,  §§  1-68; 

Perry  on  Pleading,  pp.  178-182,  240,  251-272,  295-302,  310-313; 

Shipman  on  Pleading,  §§  187-190,  205-212. 

§  304.  Of  the  Contents  of  Pleadings :  Confession  and  Avoidance. 
The  legal  effect  of  a  pleading  may  be  controverted,  not  only 
by  a  demurrer,  but  by  alleging  new  and  additional  facts  which 
qualify  or  limit  the  facts  previously  alleged,  and  give  a  different 
legal  aspect  to  the  controversy.  The  pleading  containing  such 
allegations  is  called  a  confession  and  avoidance.  It  begins  by 
formally  admitting  the  truth  of  the  facts  stated  in  the  previous 
pleading,  and  then  avers  that  notwithstanding  those  facts  the 
party  pleading  them  should  not  prevail  because  of  other  facts 
which  it  proceeds  to  set  forth  in  detail.  Thus  in  an  action 
of  trespass  quare  clausum  the  defendant  may  plead  confessing 
the  entry,  and  avoiding  his  apparent  liability  therefor  by 
averring  that  he  entered  in  pursuance  of  official  duty.  To  this 
the  plaintiff  may  in  his  turn  reply  by  a  similar  pleading,  con- 
fessing that  the  entry  was  originally  lawful,  and  averring  that 
the  defendant  having  entered  committed  injuries  which  ren- 
dered him  a  trespasser  ab  initio.  A  pleading  in  confession  and 
avoidance  raises  no  issue,  but  must  conclude  with  a  verification, 
or  offer  to  prove  the  new  matter  alleged.     To  it  the  opposite 


336  ELEMENTARY   LAW  §  305 

party  must  answer  with  a  demurrer,  a  traverse,  or  another 
confession  and  avoidance;  and  so  onward  until  some  question 
of  law  is  presented  to  the  court,  or  some  matter  of  fact  is  posi- 
tively asserted  and  positively  denied. 

Rem.  The  new  matter,  offered  in  avoidance  in  this  pleading, 
must  be  of  such  a  character  that  if  it  be  true  it  affords  a  com- 
plete answer  to  the  legal  conclusions  derived  from  the  last  pre- 
vious pleading.  Otherwise,  it  is  not  germane  to  that  pleading,  and 
may  be  treated  as  a  nullity  and  judgment  may  be  rendered 
against  the  party  who  offers  it.  Remotely  resembling  a  confes- 
sion and  avoidance  is  a  'protestation,  which  a  party  employs  when 
he  deems  it  inexpedient,  in  view  of  future  litigation,  to  admit 
matters  of  fact  and  yet  cannot  deny  them  in  connection  with  the 
present  suit.  In  such  a  case  his  pleading  protests  against  the 
matter  of  fact  without  admitting  or  denying  it,  and  then  alleges 
the  real  matter  on  which  his  action  or  defence  depends.  In  the 
current  suit  the  protestation  has  no  effect ;  it  operates  only  to 
save  the  rights  of  the  protestant  in  a  subsequent  action,  and  pre- 
vent him  then  from  being  estopped  to  dispute  such  facts  by  his 
failure  to  deny  them  in  the  present  suit. 

Read:  3  Bl.  Com.,  p.  310; 

Andrews,  Amexicaii  Law,  §§  751,  753,  759; 

Chitty  on  Pleading,  pp.  503-506,  551-558; 

Stephen  on  Pleading,  §  164; 

Gould  on  Pleading,  ch.  vi,  §§  70-74;  ch.  vii,  §§  57-62; 

Perry  on  Pleading,  pp.  272-279; 

Shipman  on  Pleading,  §§  213-219. 

§  305.     Of  the  Pleadings:  their  Verbal  Expression. 

It  being  the  purpose  of  the  pleadings  to  raise  certain  issues, 
intelligible  to  the  court  and  decisive  of  the  controversy,  it  is 
essential  that  in  their  allegations  and  denials  they  should  be 
(1)  Complete;  (2)  Accurate;  (3)  Definite;  (4)  Positive;  and 
(5)  Concise.  Completeness  requires  that  every  fact  which  is 
necessary  to  support  the  legal  right  claimed  by  the  pleader, 
including  all  matters  of  title,  possession,  or  authority,  should 
be  fully  stated,  except  when  they  are  either  (a)  presumed  by 
law.;  or  (b)  known  already  to  the  court  through  the  previous 
pleadipgs  or  as  matters  of  judicial  notice;  or  (c)  must  here- 
after be  pleaded  by  the  adverse  party  as  the  basis  of  his  an- 
tagonistic claims.  Accuracy  requires  that  every  statement 
of  a  material  fact  shall   contain  such  particulars  concerning 


§  305        PROCEDURE   IN  COMMON  LAW   ACTIONS  337 

persons,  time,  place,  subject-matter,  quantity,  quality,  and 
value  as  to  distinguish  it  from  every  other  fact  for  which  it 
might  be  mistaken,  and  to  exhibit  it  in  its  true  legal  effect 
and  relations.  Definiteness  requires  (a)  that  every  pleading 
should  be  consistent  with  itself,  and  thereby  avoid  the  fault 
of  repugnancy ;  (b)  that  it  should  set  forth  but  one  ground  of 
action  or  defence,  and  thereby  avoid  the  fault  of  duplicity; 
(e)  that  it  should  adhere  to  the  same  ground  of  action  or  de- 
fence assumed  in  the  previous  pleadings  of  the  same  party,  and 
thereby  avoid  the  fault  of  departure;  and  (d)  that  its  lan- 
guage should  be  open  to  but  one  interpretation  and  thereby 
avoid  the  fault  of  ambiguity.  Positiveness  requires  that  every 
material  fact  should  be  (a)  directly  and  positively  affirmed; 
(b)  not  laid  under  a  whereas;  (c)  not  stated  argnmentatively ; 
(d)  not  proposed  as  an  hypothesis;  and  (e)  not  inserted  by 
way  of  recital.  Conciseness  requires  (a)  that  every  pleading 
shall  follow  the  customary  forms  ^^•ith  their  proper  commence- 
ments and  conclusions;  (b)  that  it  shall  contain  only  the 
material  facts  with  those  which  are  necessary  to  explain  them, 
and  thereby  avoid  the  fault  of  surplusage;  and  (c)  that  it 
shall  set  forth  no  matters  of  mere  law,  and  no  particulars  of 
the  evidence  by  which  the  facts  stated  are  to  be  proved. 

Rem.  Observance  of  these  rules  in  all  their  stringency  is  not 
difficult  if  the  pleader,  instead  of  relying  on  his  own  ingenuity  in 
the  construction  of  his  pleadings,  will  make  diligent  use  of  the 
established  ''Forms  and  Precedents,"  which  are  the  fruit  of  cen- 
turies of  labor  by  the  most  accomplished  pleaders  in  the  common 
law  courts.  Many  volumes  of  these  exist  and  are  accessible  to 
every  student  of  the  law,  and  though  some  of  them  are  now  con- 
sidered cumbersome  and  verbose,  and  have  been  displaced  by 
shorter  and  more  simple  modes  of  statement,  yet  as  to  all  the 
recpiisites  of  perfect  pleading  they  are  still  the  models  from 
which  the  modern  jileader  cannot  substantially  depart  without 
presumption  and  grave  risk  of  disasti-r.  Even  where  the  Code 
Procedure  has  been  adopted  they  furnish  the  verbal  raiment  in 
which  all  the  material  allegations  of  the  pleadings  should  be 
clothed. 

Read:  3  Bl.  Com.,  pp.  308,  310,  311 ; 

Andrews,  American  Law,  §§  731-734,  752-756,  759-763; 
Cliitty  oil  Plcadiiifr.  pp.  l.'3('>-2<»0,  SoS-.W?; 
Stephen  on  Pleading,  §§  105-107,  175-260; 
22 


338  ELEMENTARY  LAW  §  306 

Gould  on  Pleading,  ch.  iii,  §§  1-198;  ch.  viii; 
Perry  on  Pleading,  pp.  295-432 ; 

Shipman  on  Pleading,  §§  166-169,  180-185,  220,  233-249,  258-270, 
308-359. 


§  306.     Of  the  Pleadings:  their  Interpretation. 

The  meaning  of  a  pleading  is  fixed  by  the  interpretation 
given  to  it  by  the  court;  and  this  interpretation  leans  most 
strongly  against  the  pleader  and  in  favor  of  his  adversary. 
Hence  he  is  conclusively  presumed  to  admit  every  material 
allegation  of  the  previous  pleading  which  he  does  not  in  his 
own  pleading  expressly  deny.  If  his  own  pleading  is  bad  in 
one  part  it  is  not  aided  by  any  other  part  but  is  bad  as  a  whole, 
unless  its  defect  is  cured  by  an  admission  of  the  same  matter 
in  a  subsequent  pleading  of  the  adverse  party.  If  he  traverses 
an  entire  previous  pleading,  which  contains  both  immaterial 
and  material  allegations,  his  traverse  is  applied  to  the  material 
facts  as  limited  and  qualified  by  the  immaterial  and  not  to  the 
material  as  standing  by  themselves ;  and  thus  admits  the  truth 
of  the  material.  But  purely  immaterial  assertions  do  not  vitiate 
the  pleading  in  which  they  are  contained,  unless  they  are  so 
connected  with  the  material  allegations  as  to  render  them 
objectionable. 

Rem.  The  rigidity  with  which  these  rules  of  interpretation  are 
applied  is  well  exemplified  in  that  error  in  pleading  known  as  a 
'^negative  pregnmit."  This  occurs  when  material  allegations  are 
limited  or  qualified  by  immaterial  statements  in  the  same  plead- 
ing. Thus  in  an  action  for  an  assault  on  a  certain  day,  the  alle- 
gation of  the  assault  is  material ;  the  allegation  that  it  was  com- 
mitted on  that  specific  day  is  immaterial.  Now,  if  the  defendant 
in  his  pleading  denies  that  he  committed  an  assault  on  that  day, 
this  is  taken  as  an  admission  that  he  committed  an  assault  on 
some  day  and  as  a  denial  only  that  it  was  committed  on  the 
specific  day  named.  Such  a  pleading  is  a  denial  containing  an 
admission ;  a  negative,  pregnant  with  an  affirmative. 

Read:  Chitty  on  Pleading,  pp.  260-263,  571-574; 
Stephen  on  Pleading,  §  243; 
Gould  on  Pleading,  ch.  iii,  §  169; 
Perry  on  Pleading,  pp.  383-386,  401,  402,  412-414; 
Shipman  on  Pleading,  §§  342-344,  351. 


§  307        PROCEDURE   IN  COMMON  LAW  ACTIONS  339 

§  307.     Of  the  Pleadings  to  the  Jurisdiction. 

Objections  to  the  jurisdiction  of  the  court  may  be  based  upon 
a  want  of  jurisdiction  over  the  person  of  the  defendant  or 
upon  a  want  of  jurisdiction  over  the  subject-matter  of  the  con- 
troversy. A  want  of  jurisdiction  over  the  person  of  the  defend- 
ant may  be  waived  by  him,  and  will  be  waived  unless  he  appears 
in  court  by  a  special  ap{)earance  and  takes  some  steps  to  have 
the  suit  dismissed.  Where  the  defect  of  jurisdiction  is  appar- 
ent on  the  face  of  the  proceedings  he  may  insist  on  the  objection 
by  a  simple  motion,  made  orally  or  in  writing  according  to  the 
custom  of  the  court.  Where  the  defect  is  7iot  apparent  on  the 
record,  but  requires  the  presentation  of  new  matters  of  fact, 
he  must  allege  these  by  a  pleading,  in  which  they  are  set  forth 
with  the  highest  degree  of  completeness,  accuracy,  and  definite- 
ness.  To  this  pleading  the  plaintiff  may  reply  by  a  demurrer, 
traverse,  or  confession  and  avoidance;  and  from  thence  the 
pleadings  will  proceed  until  an  issue  is  reached.  A  want  of 
jurisdiction  over  the  subject-matter  of  the  controversy  cannot  be 
waived,  but  must  be  noticed  by  the  court,  whenever  and  how- 
ever brought  to  its  attention,  and  the  suit  at  once  dismissed. 
If  the  defendant  is  aware  of  the  defect  when  he  appears  to 
answer  he  may  raise  the  objection  by  a  motion  or  a  plea  ac- 
cording to  the  disclosures  of  the  record;  but  should  he  remain  si- 
lent the  proceedings  will  still  be  invalid.  Similar  pleas  or  motions 
are  employed  where  jurisdiction,  though  not  wholly  wanting, 
is  suspended  by  operation  of  law,  —  as  when  a  war  prevails 
between  the  nations  to  which  the  parties  respectively  belong. 
An  order  of  the  court  dismissing  a  suit  for  want  of  jurisdiction 
is  not  a  judgment  in  favor  of  either  party,  and  can  contain  no 
direction  as  to  their  future  conduct  and  no  award  of  costs. 

Rem.  Many  of  the  proceedings  in  a  court  of  justice  are  carried 
on  by  means  of  motions.  A  motion  is  an  occasional  application  to 
the  court,  by  the  parties  or  their  counsel,  in  order  to  obtain  some 
rule  or  direction  of  the  court  which  becomes  necessary  to  the  prog- 
ress of  a  cause.  A  motion  is  not  a  pleading,  and  does  not  become 
part  of  the  record,  unless  the  ruling  of  the  court  upon  it  raises 
some  question  of  law  which  is  subject  to  review  upon  a  writ  of 
error.  Whether  it  sjiall  be  made  orally  or  in  writing;  whether  it 
can  be  heard  without  previous  notice  to  the  adverse  |)arty; 
whether  it  must  be  suijjiorted  by  parol  testimony  or  written  aiiida- 


340  ELEMENTARY  LAW  §  308 

vit ;  and  numerous  other  details  concerning  its  form  and  mode  of 
presentation  and  determination ;  are  regulated  by  the  rules  of 
practice  established  by  the  court,  and  not  by  any  general  law. 

Read:  Andrews,  American  Law,  §§  711-722,  726,  727,  765,  767; 
Chitty  on  Pleading,  pp.  457-462; 
Stephen  on  Pleading,  §  98; 
Gould  on  Pleading,  ch.  v,  §§  1-30; 
Perry  on  Pleading,  pp.  175,  420,  421; 
Shipman  on  Pleading,  §  49; 

Maxwell  on  Pleading  and  Practice,  §§  20-28,  138-158; 
Foster's  First  Book  of  Practice,  pp.  363-367,  398-406. 

§  308.     Of  the  Pleadings  in  Abatement. 

Objections  to  the  mode  in  which  the  action  has  been  in- 
stituted are  ordinarily  made  by  'pleadings  in  abatement;  though 
where  such  objections  are  also  fatal  to  the  cause  of  action, 
however  the  action  might  be  instituted,  they  may  be  reserved 
for  a  pleading  on  the  merits.  If  such  objections  are  apparent 
on  the  record  they  may,  in  some  States,  be  brought  to  the  atten- 
tion of  the  court  by  a  motion  to  quash.  A  plea  in  abatement  is 
a  formal  pleading  in  which  the  defendant  sets  forth  with  the 
highest  degree  of  completeness,  accuracy,  and  definiteness 
the  facts  which  show  that  the  action  has  been  improperly  in- 
stituted, and  prays  that  on  these  grounds  the  suit  may  abate 
and  be  dismissed.  All  causes  for  such  abatement  on  which  the 
defendant  expects  to  rely  must  be  inserted  in  the  plea;  which 
must  so  describe  the  several  defects  that  the  plaintiff  may  be- 
able,  in  another  action,  to  avoid  them  if  they  are  avoidable. 
To  this  pleading  the  plaintiff  may  demur  or  plead  until  an 
issue  is  reached  for  the  decision  of  the  court.  Any  defect  re- 
lating merely  to  the  institution  of  the  suit  and  not  thus  made 
the  ground  of  a  plea  or  motion  is  waived,  and  unless  fatal  to 
the  jurisdiction  of  the  court  over  the  subject-matter  will  not 
vitiate  the  subsequent  proceedings.  A  judgment  sustainijig  o 
plea  in  abatement  formerly  dismissed  the  action,  and  compelled 
the  plaintiff  to  commence  anew  or  abandon  the  controversy 
altogether;  but  under  modern  practice  he  is  permitted  to 
amend  the  defect,  if  it  be  amendable,  upon  the  payment  of 
such  costs  as  the  court  may  direct.  A  judgment  in  favor  of  the 
plaintiff  on  an  issue  created  by  a  denial  of  the  matters  set  up 
in  the  plea  is  conclusive  on  the  merits  also  so  far  as  those  mat- 


§  309        PROCEDURE   IN   COMMON  LAW   ACTIONS  34] 

ters  are  concerned;  but  a  judgment  in  his  favor  on  a  demurrer 
to  the  ph>a,  or  on  new  matter  set  up  in  his  answer  to  the  plea, 
merely  orders  the  defendant  to  answer  over  (respondeas  ouster) 
with  or  without  the  payment  of  costs. 

Rem.  Pleadings  in  abatement  must  be  stated  with  the  highest 
degree  of  certainty  and  definiteness.  Certainty  in  'pleading  is 
said  to  be  of  three  degrees:  (1)  Certainty  to  a  common  intent; 
(2)  Certainty  to  a  certain  intent  in  general;  (3)  Certainty  to  a 
certain  intent  in  every  particular.  A  })leading  is  certain  to  a  mm- 
mon  intent  when  it  is  clear  enough  according  to  reasonable  in- 
tendment and  construction,  though  not  worded  with  absolute 
precision.  Certainty  to  a  common  intent  cannot  add  to  a  sen- 
tence words  which  have  been  omitted,  —  the  rule  being  one  of 
construction  only,  and  not  one  of  addition.  This  is  the  lowest 
form  of  certainty  which  the  rules  of  pleading  allow,  and  is  suffi- 
cient only  in  pleas  in  bar,  rejoinders,  and  such  other  pleadings 
on  the  part  of  the  defendant  as  go  to  the  action,  dertaintj/  to  a 
certain  intent  in  general  is  a  higher  degree  than  the  last  and 
means  what,  upon  a  fair  and  reasonable  construction,  may  be 
called  certain  without  recurring  to  possible  facts  which  do  not 
appear  except  by  inference  or  argument ;  and  is  what  is  required 
in  declarations,  replications,  and  indictments  (in  the  charge  or 
accusation),  and  in  returns  to  w^rits  of  mandamus.  Certainty  to 
a  certain  intent  in  every  particular  requires  the  utmost  fulness 
and  particularity  of  statement,  as  well  as  the  highest  attainable 
accuracy  and  precision,  leaving  nothing  to  be  supplied  by  argu- 
ment, inference,  or  presumption,  and  with  no  supposable  answer 
wanting.  The  pleader  therefore  must  not  only  state  the  facts  of 
his  own  case  in  the  most  exact  way,  but  must  add  to  them  such 
other  facts  as  will  anticipate  the  claims  of  his  adversary.  This 
degree  of  certainty  is  required  only  in  the  case  of  pleas  in  estoppel 
and  dilatory  pleas. 

Read:  3  Bl.  Com.,  pp.  301-303; 

Andrews,  American  Law,  §§  728,  730; 

Chitty  on  Pleading,  pp.  257-2G0,  462-485; 

Stephen  on  Pleading,  §  100; 

Gould  on  Pleading,  ch.  v,  §§  31-159; 

Perry  on  Pleading,  pp.  176-178,  217,  283,  321,  393,  396,  424; 

Shipman  on  Pleading,  §§  51,  223,  224,  464,  465,  494; 

2  Greenleaf,  Evidence,  §§  18-27. 

§  309.     Of    the    Pleadings    to    the    Merits    of    the    Action:    the 
Declaration. 

The  pleadings  to  the  merits  of  the  action  consist  of  tiic  declara- 
tion, in  which  the  plaintiff  states  his  claim ;  and  the  subsequent 


342  ELEMENTARY  LAW  §  309 

pleadings  of  both  parties,  through  which  a  decisive  issue  is 
finally  attained.  Of  these  pleadings,  the  first  in  order  is  the 
declaration,  which  is  filed  at  the  commencement  of  the  suit  or 
at  the  time  of  the  return  of  the  process  into  court.  The  purpose 
of  the  declaration  is  to  set  forth  the  cause  of  action  in  such  a 
manner  that  the  defendant  may  know  what  he  has  to  answer; 
that  the  jury  may  be  able  to  give  a  verdict  completely  covering 
the  matters  in  dispute;  and  that  the  court  may  render  a  judg- 
ment which  terminates  the  controversy.  It  must,  therefore, 
contain  in  legal  form,  and  with  all  the  necessary  technical  aver- 
ments, a  clear  and  concise  allegation  of  the  facts  which  con- 
stitute the  cause  of  action,  of  the  damage  which  the  plaintiff 
has  sustained  thereby,  and  of  the  remedy  for  which  he  seeks. 
When  these  material  facts  require  further  explanation,  by  the 
recital  of  other  facts  which  in  themselves  are  immaterial,  such 
facts  must  be  stated  by  way  of  inducement  or  preparation  for 
the  assertion  of  the  material  facts.  When  the  injury  has  resulted 
in  peculiar  damage  to  the  plaintiff,  over  and  above  its  natural 
consequences  in  ordinary  circumstances,  the  character  of  such 
damage  and  its  relation  to  the  injury  must  be  specially  set 
forth  as  matter  of  aggravation.  Where  the  right  invaded  by  the 
injury  is  an  absolute  personal  right  it  need  not  be  described, 
since  of  the  existence  of  all  such  rights  in  every  person  the 
court  will  take  judicial  notice;  but  every  property  or  family 
or  official  right  must  be  averred,  with  a  description  of  the  object 
or  relation  to  which  it  pertains.  Where  property  was  the  sub- 
ject of  the  injury  it  must  be  sufficiently  identified  by  stating  its 
location,  quantity,  quality,  or  value,  in  order  to  show  that  the 
court  has  jurisdiction  of  the  matter  of  the  suit,  and  to  indicate 
the  nature  and  extent  of  the  injury  it  has  received.  The  wrong- 
ful actions  or  omissions  of  the  defendant  must  be  distinguished 
by  allegations  of  their  time  and  place;  and  these  allegations 
must  be  true  whenever  the  date  of  the  transaction  is  essential 
to  the  right  of  action,  or  the  place  of  its  occurrence  determines 
the  jurisdiction  of  the  court.  Where  the  wrong  done  is  of  an 
enduring  character,  like  a  protracted  nuisance,  it  should  be 
laid  with  a  continuando,  —  that  is,  as  having  been  commenced 
at  a  certain  date  and  as  having  thence  continued  until  another 
specified  date,  or  until  the  institution  of  the  suit.     Where  the 


§  309        PROCEDURE   IN  COMMON  LAW  ACTIONS  343 

wrong  consisted  of  distinct  acts  frequently  recurring,  like  re- 
peated trespasses,  it  should  be  described  with  a  repetendo,  — 
that  is,  as  having  been  committed  on  a  certain  date  and  on 
divers  other  days  and  times  between  that  date  and  another 
subsequently  named,  or  the  date  of  the  commencement  of  the 
action.  Whenever,  in  spite  of  these  precautions,  any  material 
allegation  still  remains  indefinite  the  defendant  is  entitled, 
before  pleading  to  the  declaration,  to  its  further  explication 
by  a  bill  of  particulars,  or  some  other  explanatory  statement. 
Should  the  defendant,  in  a  plea  germane  to  the  declaration  as 
it  stands,  set  up  a  defence  not  applicable  to  the  cause  of  action 
on  which  the  present  suit  is  based,  but  to  another  transaction 
to  which  the  averments  of  the  declaration  would  equally  apply, 
the  plaintiff  may  restate  his  cause  of  action  by  a  novel  assign- 
ment with  additional  particulars,  to  distinguish  it  from  that 
to  which  the  plea  refers,  and  thus  compel  the  defendant  to  re- 
plead to  the  real  matter  of  the  suit.  Every  declaration  must 
commence  with  the  title  of  the  court  to  which  the  action  has 
been  brought;  the  venue  or  place  at  which  the  facts  are  said 
to  have  occurred  and  over  which  the  court  has  jurisdiction; 
the  names  of  the  parties  and  the  official  capacity,  if  any,  in 
which  they  sue  or  are  sued ;  and  an  averment  that  the  defendant 
has  been  served  with  process  to  answer  to  the  suit.  It  must 
conclude  with  a  demand  for  damages,  or  for  such  other  relief 
as  the  plaintiff  deems  himself  authorized  by  law  to  claim ;  and 
be  signed  by  the  plaintiff  or  by  his  attorney.  To  every  form 
of  action  belongs  an  established  form  of  declaration  which 
contains  in  outline  all  the  essential  averments,  and  which  the 
plaintiff's  attorney  can  readily  adapt  to  the  peculiar  circum- 
stances of  his  case. 

Rem.  In  framing  a  declaration  the  pleader  must  regard  not 
only  the  facts  as  they  actually  exist,  but  the  testimony  by  which 
they  are  to  be  proved ;  since  in  a  legal  controversy  no  facts  exist 
until  they  are  established  by  sufficient  evidence.  Hence,  where 
the  pleader  is  in  doubt  whether  the  testimony,  when  produced  in 
court,  will  support  one  or  another  mode  of  allegation  he  is  at 
liberty  to  state  his  cause  of  action  in  difjcrcni  counts,  each  suited 
to  some  possible  contingency  of  proof;  and  if  supporting  one  by 
proper  evidence  to  gain  his  cause  on  that  though  failing  on  the 
rest.    Each  of  these  counts  is,  in  reality,  a  separate  declaration, 


344  ELEMENTARY   LAW  §  310 

and  must  possess  all  the  attributes  of  a  sole  declaration,  except 
in  the  possession  of  a  separate  commencement  and  conclusion, 
and  in  the  right  of  the  pleader  to  incorporate  into  one  count,  by 
reference  without  detailed  narration,  the  matters  stated  at  full 
length  in  another. 

Read:  3  Bl.  Com.,  pp.  293-296; 
Andrews,  American  Law,  §  755; 
Chitty  on  Pleading,  pp.  263-437; 
Stephen  on  Pleading,  §  94 ; 
Gould  on  Pleading,  ch.  iv,  §§  1-51,  79-103; 
Perry  on  Pleading,  pp.   110,   164-167,  283-289,  313-317,  321-362, 

417-420,  431,  432; 
Shipman  on  Pleading,  §§  45,  95-97,  226,  252-256,  270-306,  327,  328, 
349,  350,  370-376,  386. 


§  310.     Of   the   Pleadings   to   the   Merits:    Pleas   in  Bar:    the 
General  Issue. 

Every  declaration  in  a  common  law  action,  if  formally  suf- 
ficient, is  considered  as  a  totality  irrespective  of  its  details, 
and  as  setting  up  a  single  cause  of  action  for  which  the  court 
under  that  particular  form  of  action  can  apply  a  remedy.  This 
gives  to  the  declaration  an  artificial  as  well  as  a  unitanj  charac- 
ter, which  extends  also  to  the  formal  common  traverse  by 
which  the  declaration  as  a  whole  may  be  denied.  This  for- 
mal common  traverse  is  called  the  "general  issue."  It  differs 
from  the  ordinary  common  traverse,  which  denies  the  contents 
of  the  declaration,  in  that  it  denies  not  the  specific  allegations 
therein  but  the  existence  of  the  cause  of  action  as  an  entirety, 
and  the  corresponding  right  of  the  plaintiff  to  a  legal  remedy. 
The  scope  of  the  general  issue  in  each  form  of  action,  and  the 
defences  which  may  therefore  be  presented  under  it,  are  fixed 
by  law.  Being  intended  to  avoid  an  otherwise  protracted 
series  of  affirmations  and  denials,  and  bring  the  pleadings  to 
an  immediate  issue,  it  always  closes  to  the  country  by  offering 
to  go  at  once  to  trial,  —  which  offer  the  plaintiff  is  obliged  to 
accept.  The  technical  knowledge  required  to  prepare  and 
conduct  cases  under  this  system  of  pleading  early  led,  in  this 
country,  to  the  practice  of  appending  to  the  general  issue 
notices  of  those  defences  of  whose  precise  relation  to  the  general 
issue  the  unlearned  lawyer  of  the  defendant  was  not  satisfied; 
thereby  introducing  into  a  logical  and  perfect  system  of  plead- 


§  311        PROCEDURE   IN   COMMON  LAW  ACTIONS  345 

ing  such  confusion  and   disorder  as  to  gradually  pave  the  way 
for  the  adoption  of  the  New  Procedure. 

Rem.  Another  modern  practice  of  similar  origin  and  result  is 
that  of  replying  to  the  declaration  with  a  comvum  traverse  or 
general  denial;  thus  denying  each  and  all  its  specific  allegations, 
and  leaving  the  issues  thereby  created,  and  the  defences  admissi- 
ble under  the  traverse,  to  be  ascertained  i)y  the  parties  and  the 
court,  as  best  they  can,  by  an  examination  of  the  declaration  in 
detail.  Still  another  plea  in  bar  is  the  ".?/?cria/ mi/r,"  which  is 
a  denial  of  some  particular  portion  of  the  plaintiff's  claim  without 
the  proof  of  which  his  suit  must  fail.  It  admits  by  implication  all 
other  matters  claimed  by  him  and  narrows  the  issue  to  the  point 
denied.  Both  the  general  denial  and  the  special  issue  close  to 
the  country,  and  require  a  joinder  of  the  plaintiff  and  the  sub- 
mission of  the  case  to  trial. 

Read:  3  Bl.  Com.,  pp.  305,  306; 

Andrews,  American  Law,  §§  729,  740,  741; 

Chitty  on  Pleading,  pp.  4S(>-490,  552 ; 

Stephen  on  Pleading,  §§  102,  145; 

Gould  on  Pleading,  ch.  vi,  §§  1-69; 

Perry  on  Pleading,  pp.  241-251,  312,  408-411; 

Shipman  on  Pleading,  §§  191-194,  358; 

2  Greenleaf,  Evidence,  S§  1-17; 

Bolles,  Important  English  Statutes,  p.  178,  Hilary  Rules. 

i  311.     Of  the  Pleadings  to  the  Merits:    Special  Pleas  in  Bar: 
Justification:  Discharge. 

A  special  plea  in  bar  is,  in  form,  either  a  general  technical 
traverse,  or  a  confession  and  avoidance,  averring  matter  actually 
or  apparently  new  and  contrary  to  the  legal  ctl'cct  of  the  dec- 
laration. In  substance  it  is  cither  a  justification  or  excuse  of  the 
defendant's  conduct,  showing  that  the  jjlaintiff  never  had  a 
cause  of  action;  or  a  discharge  or  release  of  the  plaintiil's  claim, 
showing  that  his  cause  of  action  no  longer  exists.  All  defences 
which  are  not  admissible  in  evidence  under  the  general  issue 
mu.st  be  presented  under  these  special  plca-s.  If  the  plea  is  in 
the  form  of  a  general  technical  traverse  it  concludes  to  the 
country.  If  in  the  form  of  a  special  technical  traverse  it  con- 
cludes with  a  verification,  and  re(|uires  a  further  answer  from 
the  plaintiff.  Every  special  plea  in  bar  has  its  own  formal  com- 
mencement and  conclusion,  and  its  technical  substantial  outline 
and  averments  which  the  pleader  is  expected  to  observe. 


346  ELEMENTARY   LAW  §  312 

Rem.  Prior  to  the  Statute  of  Anne  (a.  d.  1706)  the  defendant 
was  not  permitted  to  urge  several  distinct  defences  to  the  same 
claim  of  the  plaintiff,  on  account  of  the  complexity  of  issues 
which  such  proceedings  would  create.  He  could  make  a  different 
defence  to  every  separate  claim,  and  therefore  multiply  his  pleas 
in  bar  to  correspond  with  the  different  causes  of  action,  or  with 
the  different  items  of  wrongdoing  charged  against  him  in  the 
declaration ;  but  though  he  might  have  several  good  defences  to 
a  single  cause  or  item  he  was  compelled  to  rely  on  one  and  aban- 
don all  the  rest.  This  hardship  was  removed  by  the  Statute  of 
Anne  which  allowed  him  to  plead,  by  the  leave  of  the  court,  all  his 
defences  if  he  chose.  This  permission  did  not  extend  to  plead- 
ings subsequent  to  the  defendant's  answers  to  the  declaration, 
nor  authorize  him  to  combine  distinct  defences  in  a  single  plea. 
Where  there  are  several  defendants,  whose  alleged  liability  is  not 
joint,  each  may  pursue  his  own  line  of  defences  by  appropriate 
pleas. 

Read:  3  Bl.  Com.,  pp.  306-309; 

Andrews,  American  Law,  §§  742,  743; 
Chitty  on  Pleading,  pp.  504,  542,  543,  586-602; 
Stephen  on  Pleading,  §  102 ; 

Gould  on  Pleading,  ch.  vi,  §§  70-121;  ch.  viii,  §§  1-33; 
Perry  on  Pleading,  pp.  272,  317-322; 
Shipman  on  Pleading,  §§  215,  257. 

BoUes,    Important   English   Statutes,   p.    108,  Stat.   Anne,   Double 
Pleading. 


§  312.     Of  the  Pleadings  to  the  Merits :  the  Replication  and  Sub- 
sequent Pleadings. 

Where  any  pleading  concludes  to  the  country  it  is  the  duty 
of  the  adverse  pleader  to  accept  the  issue  tendered,  and  join 
in  submitting  it  to  trial.  This  is  done  by  a  pleading  called 
the  similiter,  which  staties  that  the  pleader  "doth  the  like." 
This  is,  therefore,  the  reply  which  the  plaintiff  is  obliged  to 
make  when  the  defendant  has  answered  the  declaration  with 
the  general  issue,  or  a  common  traverse,  or  a  general  technical 
traverse,  or  a  special  issue.  But  where  the  defendant  has  pleaded 
a  special  technical  traverse,  or  confession  and  avoidance,  the 
plaintiff  must  demur,  or  traverse,  or  avoid.  If  he  demurs  the 
defendant  must  join,  and  the  issue  of  law  thus  created  will 
then  be  submitted  to  the  court  for  decision.  If  he  pleads  a 
common  traverse  or  a  general  technical  traverse  the  defendant 
must  reply  with  a  similiter.    If  he  avoids  by  pleading  a  special 


§  313        PROCEDURE  IN  COMMON  LAW  ACTIONS  347 

technical  traverse  the  new  matter  which  this  introduces  originates 
another  series  of  affirmations  and  denials,  which  may  continue 
as  long  as  the  resources  of  the  case  and  the  ingenuity  of  the 
pleaders  will  permit. 

Rem.  It  is  the  tendency  of  modern  practice  to  shorten  the 
series  of  pleadings  as  far  as  possible  by  amending  the  declaration 
and  pleas  in  bar,  in  order  to  complete  the  presentation  of  the 
claims  of  the  parties  with  the  plaintiff's  replication.  This  is  par- 
ticularly the  case  in  the  New  Procedure,  in  which  it  imitates  the 
methods  of  the  equity  courts. 

Read:  3  Bl.  Com.,  pp.  309,  310; 
Andrews,  American  Law,  §  758; 
Chitty  on  Pleading,  pp.  603-607,  625-688; 
Stephen  on  Pleading,  §§  104-107,  169; 
Gould  on  Pleading,  eh.  vi,  §§  20-22; 

Perry  on  Pleading,  pp.  180,  181,  292-294,  320,  394-398,  400,  403-405; 
Sliipman  on  Pleading,  §§  55,  64-69,  188,  230-232. 


§  313.  Of  the  Pleadings  to  the  Merits  in  Actions  of  Assumpsit. 
The  declaration  in  an  action  of  special  assumpsit  must  set 
forth  the  contract  with  its  parties,  subject-matter,  promise,  and 
consideration ;  the  performance  by  the  j)laintiff  of  all  conditions 
precedent,  the  breach  by  the  defendant,  and  the  resulting  dam- 
ages. In  general  assumpsit  it  must  describe  the  circumstances 
from  which  the  law  implies  the  promise,  assert  the  promise 
and  its  non-fulfilment,  and  specify  the  damages.  The  general 
issue  in  this  action  is  non-assumpsit,  under  which  it  has  been 
held  that  the  defendant  may  present  any  defence  in  denial  or 
avoidance  of  the  cause  of  action  except  the  Statute  of  Limita- 
tions, tender  by  the  defendant,  his  discharge  in  bankruptcy, 
and  estoppel ;  these  must  be  offered  in  a  special  plea.  In  some 
States  the  scope  of  the  general  issue  is  more  limited,  and  matters 
which  admit  the  existence  of  the  contract,  but  allege  its  abroga- 
tion or  performance,  must  be  set  up  in  a  pleading  of  confession 
and  avoidance,  or  in  notices  appended  to  the  general  issue. 

Rem.  The  latitude  allowed  to  the  introduction  of  evidence 
under  the  general  issue  of  course  rendered  the  plaintiff  mi- 
certain  what  def(Mices  would  be  presented  by  the  defendant 
even  up  to  the  time  of  trial,  and  compelled  him  to  prepare  him- 
self witli  testimony  to  meet  all  possible  contingencies,  —  thus 


348  ELEMENTARY  LAW  §  314 

incurring  in  many  cases  a  vast  amount  of  needless  trouble  and 
expense.  Attempts  were  made  to  relieve  this  situation  both  in 
England  and  in  this  country.  In  England  the  Hilary  Rules, 
enacted  by  the  courts  in  1834,  restricted  the  scope  of  the  general 
issue,  and  required  the  defendant  to  offer  many  of  his  defences 
in  special  pleas.  In  this  country  the  courts  obliged  the  defend- 
ant to  give  notice  to  the  plaintiff,  at  a  certain  time  before  the 
trial,  of  the  specific  defences  on  which  he  might  insist ;  but 
this  rule  was  often  evaded  by  giving  notice  of  all  possible  defences, 
and  then  presenting  evidence  on  as  many  as  he  chose.  These 
inconveniences  have  had  much  influence  in  promoting  the 
adoption  of  the  New  Procedure. 

Read:  3  Bl.  Com.,  pp.  157-166; 
Stephen  on  Pleading,  §  150; 
Perry  on  Pleading,  pp.  87-89,  110,  247-249; 
Shipman  on  Pleading,  §§  98-110,  195; 
2  Greenleaf,  Evidence,  §§  101-136  a  ; 
Foster's  First  Book  of  Practice,  pp.  44-71 ; 
Belles,  Important  English  Statutes,  p.  178,  Hilary  Rules. 


§  314.     Of  the  Pleadings  to  the  Merits  in  Actions  of  Debt. 

In  an  action  of  debt  upon  a  .simple  contract  the  declaration 
must  describe  the  circumstances  from  which  the  law  implies  the 
debt,  or  the  express  agreement  which  creates  the  obligation  with 
its  parties,  subject-matter,  and  consideration;  and  must  allege 
that  the  debt  has  not  been  paid,  and  is  still  due.  In  debt  upon 
a  contract  under  seal  the  declaration  must  contain  a  recital  of 
the  sealed  instrument  or  a  statement  of  its  substance  and  legal 
effect,  with  an  offer  to  produce  it  when  it  is  within  the  plaintiff's 
control;  and  must  set  forth  such  further  circumstances  as  are 
necessary  to  show  that  under  the  contract  the  money  has  become 
due  to  the  plaintiff,  and  allege  that  it  has  not  been  paid  by  the 
defendant.  To  these  two  forms  of  debt  the  general  issue  is  nil 
debet,  covering  all  defences  except  tender,  set-off,  the  Statute  of 
Limitations,  and  estoppel;  though  where  the  debt  has  become 
due  by  the  terms  of  the  instrument  itself  the  general  issue  may 
be  non  est  factum  which  denies  only  the  execution  and  validity 
of  the  instrument,  leaving  all  other  defences  to  be  made  by 
special  plea. 

Rem.  In  debt  on  a  judgment  or  other  record  the  declaration 
must  recite  the  record  or  its  substance;  must  allege  the  jurisdic- 


§  315        PROCEDURE   IN   COMMON   LAW  ACTIONS  349 

tion  of  the  court  which  rendered  the  judgment  unless  its  jurisdic- 
tion is  presumed  by  law ;  and  must  affirm  that  the  debt  created 
by  the  record  is  unpaid  and  is  now  due  to  the  plaintiff.  The 
general  issue  in  this  action  is  nul  tiel  record,  which  denies  only 
the  existence  and  validity  of  the  record ;  all  other  defences  must 
be  presented  in  special  pleas.  In  debt  upon  a  private  statute  the 
declaration  must  set  forth  all  the  material  provisions  of  the 
statute;  must  charge  the  defendant  with  the  forbidden  actions 
or  omissions  of  which  he  has  been  guilty;  and  must  aver  that 
he  has  never  paid  the  penalty.  In  debt  upon  a  public  statute  the 
declaration  must  assert  the  guilt  of  the  defendant  and  his  non- 
payment of  the  penalty,  without  reciting  the  statute  or  its  sub- 
stance, of  which  the  court  will  take  judicial  notice.  The  general 
issue  in  debt  upon  a  statute  is  nil  debet  or  not  guilty.  Under 
nil  debet  any  defence  may  be  offered  except  tender,  the  Statute 
of  Limitations,  estoppel,  and  a  former  recovery  of  the  penalty 
by  another  plaintiff.  Under  not  guilty  the  culpable  violation  of 
the  statute  by  the  defendant  is  alone  in  issue. 

Read:  Stephen  on  Pleading,  §§  146,  147; 

Shipman  on  Pleading,  §§  111-117,  196-198,  227; 

2  Greenleaf,  Evidence,  §§  279-292; 

Foster's  First  Book  of  Practice,  pp.  144-152,  194-196. 

§  316.    Of  the  Pleadings  to  the  Merits  in  Actions  of  Oovenant- 
Broken. 

The  declaration  in  an  action  of  covenant-broken  must  set  forth 
so  much  of  the  instrument  as  may  be  essential  to  the  cause  of 
action,  either  in  its  express  words  or  according  to  its  legal  effect ; 
must  make  profert  of  the  instrument  or  explain  its  absence; 
must  affirm  that  it  was  sealed  and  delivered;  must  allege 
the  performance  of  conditions  precedent;  and  must  aver  its 
breach  by  the  defendant  and  the  consequent  damage  to  the 
plaintiff.  The  general  issue  is  non  est  factum,  which  denies  the 
existence  and  validity  of  the  covenant,  leaving  all  other  defences 
to  be  made  by  special  plea. 

Rem.  Profert  is  an  allegation  by  a  pleader  that  he  has 
brought  into  court  some  instrument  which  is  the  foundation  of 
his  claim.  It  is  a  rule  in  common-law  pleading  that  profert  must 
be  made  of  all  deeds,  wills,  letters  of  administration,  and  other 
solemn  documents  on  which  the  pleader  bases  his  action  or 
defence;  or  if  the  instrument  is  not  in  his  possession  that  he 
shall  state  its  absence  and  excuse  the  omission ;  and  his  failure 
to  do  this  renders  his  pleading  subject  to  demurrer.    When  pro- 


350  ELEMENTARY   LAW  §§  316,  317 

jert  is  made,  if  the  adverse  party  wishes  to  see  the  document  or 
hear  it  read,  he  must  crave  oyer,  and  until  this  is  granted  he  is 
not  obliged  to  answer  to  the  pleading.  In  modern  practice  it 
is  customary  to  furnish  the  adverse  party  with  a  copy  of  the 
document. 

Read  :  Andrews,  American  Law,  §  761 ; 
Stephen  on  Pleading,  §  111; 
Gould  on  Pleading,  ch.  viii; 

Perry  on  Pleading,  pp.  58-60,  185-189,  204,  426-431; 
Shipman  on  Pleading,  §§62,  63,  118-122,  199,  384,  385; 
2  Greenleaf,  Evidence,  §§  233-247; 
Foster's  First  Book  of  Practice,  pp.  136-143. 


§  316.     Of  the  Pleadings  to  the  Merits  in  Actions  of  Account. 

In  an  action  of  account  the  declaration  must  describe  the  con- 
tract or  relation  out  of  which  arises  the  duty  to  account;  must 
allege  the  neglect  or  refusal  to  account  and  specify  the  damage 
thereby  inflicted  on  the  plaintiff;  and  must  pray  that  the  re- 
quired account  be  ordered  by  the  court.  In  this  action  there 
is  no  single  general  issue.  The  plea  ne  unque  recevoir  denies 
the  contract  or  relation;  that  of  'phne  computavit  affirms  that 
the  account  has  been  fully  settled;  that  of  a  release  asserts 
that  the  liability  to  account,  which  once  existed,  has  been  ex- 
tinguished by  agreement. 

Rem.  When  an  acount  is  ordered  by  the  court  all  questions 
of  fact  or  law  which  would  arise  out  of  the  contract  or  relation 
are  open  to  dispute,  and  may  be  presented  in  the  taking  of  the 
account.  But  these  questions  are  not  there  raised  by  formal 
pleadings,  as  if  the  accounting  were  an  action.  They  appear 
rather  in  objections  to  the  evidence  offered  by  the  respective 
parties,  or  to  the  allowance  of  the  plaintiff's  claims. 

Read:  3  Bl.  Com.,  p.  163; 

Shipman  on  Pleading,  §§  123-126; 
2  Greenleaf,  Evidence,  §§  34-39. 

§  317.     Of  the  Pleadings  to  the  Merits  in  Actions  of  Trespass. 

In  an  action  of  tresspass  quare  clausxim  fregit  the  declaration 
must  describe  the  land  with  such  particularity  that  it  can  be 
identified;  must  set  forth  the  plaintiff's  title  and  possessory 
rights;  and  must  allege  that  the  defendant  entered  wrongfully 
with  force  and  arms  to  the  damage  of  the  plaintiff.    In  an  action 


§  318        PROCEDURE   IN  COMMON  LAW  ACTIONS  351 

of  trespass  de  bonis  asportatis  the  declaration  must  so  describe 
the  asported  goods  by  character,  quantity,  quaUty  and  value, 
that  they  can  be  identified;  must  aver  the  plaintiffs'  title  and 
right  to  their  possession ;  must  specify  the  wrongful  acts  of  vio- 
lence of  which  the  defendant  has  been  guilty  with  their  injurious 
effect  upon  the  property;  and  must  allege  the  loss  thereby 
occasioned  to  the  plaintiff.  In  an  action  of  trespass  vi  et  armis 
for  the  invasion  of  personal  rights  no  mention  of  those  rights  is 
necessary  in  the  declaration,  but  the  wrongful  acts  of  the  de- 
fendant and  their  consequences  to  the  plaintiff  must  be  particu- 
larly set  forth.  In  an  action  of  trespass  per  quod  the  declaration 
must  describe  the  relation  out  of  which  the  right  to  service 
grows;  the  forcible  or  fraudulent  interference  of  the  defendant 
with  the  person  from  whom  the  service  was  due;  the  conse- 
quent loss  of  ser\'ice;  and  the  damage  to  the  plaintiff.  The 
general  issue  in  all  forms  of  trespass  is  not  guilty.  This  plea 
denies  the  personal,  family,  property  or  official  rights  set  up  in 
the  declaration,  and  the  alleged  wrongful  acts  of  the  defendant. 
All  other  defences  require  a  special  plea. 

Rem.  Trespass  quare  clausum  and  trespass  de  bonis,  being 
injuries  to  possession  rather  than  ownership,  do  not  require 
that  the  plaintiff  in  those  actions  should  always  allege  and  prove 
his  title.  But  where  he  did  not  have  actual  possession,  and 
stands  upon  a  claim  of  constructive  possession  or  a  right  of 
immediate  possession,  title  may  become  important ;  since  where 
there  is  no  other  possession  the  law  imputes  possession  to  the 
true  owner  of  the  property.  In  such  cases,  title  should  always 
be  alleged  and  proved. 

Read:  Stephen  on  Pleading,  §  149; 

Shipman  on  Pleading,  §§  145-151,  201; 

2  Greenleaf,  Evidence,  §§  82-100,  612-635  a; 

Foster's  First  Book  of  Practice,  pp.  153-178. 

{  318.     Of  the  Pleadings  to  the  Merits  in  Actions  of  Trespass  on 
the  Case. 

In  actions  of  trespas's  on  the  case  the  declaration  must  describe 
in  detail  the  circumstances  which  disclose  the  right  of  the  plain- 
tiff; the  wrongful  action  or  omission  of  the  defendant  and  its 
relation  to  the  plaintiff's  right;  and  the  injurious  effect  of  such 
action   or   omission    upon    the   plaintiff's   person,    property,    or 


352  ELEMENTARY   LAW  §  319 

family  prerogatives.  The  general  issue  is  not  guilty,  and  accord- 
ing to  the  usual  practice  it  embraces  every  defence  except  the 
Statute  of  Limitations,  estoppel,  and  an  attempt  to  justify  a 
slander  by  establishing  its  truth. 

Rem.  As  an  action  on  the  case  was  intended  and  devised  in 
order  to  settle  the  controversy  between  the  parties  on  just  and 
equitable  grounds,  the  greatest  latitude  is  allowed  in  the  pleadings 
and  evidence.  All  the  facts  entering  into  the  controversy  up 
to  the  date  of  the  trial  may  be  brought  to  the  attention  of  the 
court  through  the  declaration  and  subsequent  pleadings,  and 
under  the  general  issue  all  maj'^  be  proved  except  the  three  above 
enumerated ;  and  these  three  require  special  pleas  only  because 
it  is  optional  with  the  defendant  whether  he  will  present  or 
waive  them,  and  if  he  chooses  to  present  them  justice  requires 
him  to  give  notice  to  the  plaintiff  so  that  he  may  be  prepared  to 
meet  them. 

Read:  Stephen  on  Pleading,  §  151; 
Perry  on  Pleading,  pp.  81,  82; 
Shipman  on  Pleading,  §§  127-133,  203; 
2  Greenleaf,  Evidence,  §§  223-232  h; 
Foster's  First  Book  of  Practice,  pp.  72-113,  122-135. 

§  319.     Of  the  Pleadings  to  the  Merits  in  Actions  of  Trover. 

The  declaration  in  an  action  of  trover  must  so  describe  the 
property  that  it  can  be  identified;  must  assert  the  plaintiff's 
title  and  right  of  possession;  must  allege  that  the  plaintiff  lost 
the  property  out  of  his  possession  and  that  the  defendant  found 
it,  and  subsequently  converted  it  to  his  own  use  or  unconditionally 
refused  to  deliver  it  to  the  plaintiff  on  his  demand;  and  must 
state  the  damage  which  the  plaintiff  has  thereby  sustained. 
The  general  issue  in  trover  is  not  guilty,  and  it  covers  all  defences 
except  that  of  an  adverse  title  to  the  property,  a  release  of  the 
cause  of  action,  the  Statute  of  Limitations,  and  estoppel. 

Rem.  When  the  conversion  is  a  wrong  not  only  against  the 
possession  but  also  against  the  ownership  of  the  property,  the 
plaintiff  in  the  action  of  trover  must  claim,  and  be  prepared 
to  prove,  a  general  or  special  title  to  the  property,  in  addition 
to  its  actual  or  constructive  possession,  at  the  date  of  the  alleged 
conversion.  Then  the  action  may  be  brought  by  an  owner,  or 
bailee,  an  agent  or  a  finder,  but  not  by  a  mere  custodian  or  a 
ser\  ant. 


§§  320,  321      PROCEDURE  IN  COMMON  LAW  ACTIONS       353 

Read  :  Perry  on  Pleading,  p.  93 ; 

Shipman  on  Pleading,  §§  139-144,  202; 

2  Greenleaf,  Evidence,  §§  636-649; 

Foster's  First  Book  of  Practice,  pp.  113-122. 

§  320.    Of  the  Pleadings  to  the  Merits  in  Actions  of  Replevin. 

In  an  action  of  replevin  the  declaration  must  so  describe  the 
property  that  it  can  be  identified;  must  set  forth  the  plaintiff's 
rights  of  ownership  and  possession ;  must  allege  the  unlawful 
taking  or  detention  by  the  defendant  or  his  refusal  to  deliver  on 
demand;  and  must  assert  the  resulting- damage  to  the  plaintiff. 
The  general  issue  is  non  cepit  in  mode  et  forma  or  n on  detinet. 
It  is  employed  only  when  the  defendant  does  not  claim  the 
property.  Under  this  pleading  he  may  urge  any  defence  except 
a  want  of  title  or  possession  in  the  plaintiff,  a  release  or  other 
avoidance  of  the  cause  of  action,  the  Statute  of  I^imitations,  or 
estoppel. 

Rem.  If  the  defendant  in  replevin  wishes  to  deny  the  plain- 
tiff's title  to  the  property  he  must  set  up  an  adverse  title  either 
in  himself  or  on  behalf  of  some  one  under  whom  he  claims. 
When  he  desires  a  return  of  the  proj^erty  he  must  plead  in 
avowrji  of  his  own  right  or  the  rigiit  of  his  wife,  or  v^ake  cogni- 
zance in  the  right  of  the  third  person  whom  he  represents,  and 
claim  the  restoration  of  the  property  to  him.  To  these  plead- 
ings the  plaintiff  must  make  answer  by  a  traverse,  or  confession 
and  avoidance,  or  demurrer. 

Read:  3  Bl.  Com.,  pp.  146-151; 
Stephen  on  Pleading,  §  152; 
Perry  on  Pleading,  pp.  74-77,  343,  398; 
Shipman  on  Pleading,  §§  l.')2-157,  204; 
2  Greenleaf,  Evidence,  §§  560-570; 
Maxwell  on  Pleatling  and  Practice,  §§  925-933; 
Foster's  First  Book  of  Practice,  pp.  179-193. 

§  321.  Of  the  Pleadings  to  the  Merits  in  Actions  of  Detinue. 
The  declaration  in  an  action  of  detinve  must  so  describe  the 
property  that  it  can  be  identified ;  must  allege  the  title  of  the 
plaintiff,  and  his  right  to  its  possession ;  must  set  forth  its  wrong- 
ful taking  or  detention  by  the  defendant,  or  his  refusal  to  deliver 
it  on  demand,  witli  the  consequent  damage  to  the  plaintiff; 
and  must  pray  for  its  return  to  him  as  its  true  owner.  The 
general  tssiie  in  this  action  is  non  detinet,  which  denies  the  plain« 

23 


354  ELEMENTARY  LAW  §§  322,  323 

tiff's  right  to  the  property  and  its  wrongful  detention,  leaving 
all  other  defences  to  be  made  by  special  plea. 

Rem.  As  the  primary  purpose  of  this  action  is  to  restore  the 
property  itself  to  its  lawful  owner,  no  person  should  be  made 
defendant  except  the  one  in  whose  possession  or  under  whose 
control  the  property  is  at  the  time  the  suit  is  brought.  Still,  if 
the  defendant  once  possessed  the  property,  and  in  order  to  pre- 
vent the  owner  from  recovering  it  has  fraudulently  put  it  out  of 
his  own  hands  before  the  suit  is  instituted,  judgment  for  damages 
may  be  rendered  against  him  although  the  property  cannot  be 
restored. 

Read:  Stephen  on  Pleading,  §  148; 

Shipman  on  Pleading,  §§  134-138,  200. 

§  322.  Of  the  Pleadings  to  the  Merits  in  Actions  of  Ejectment. 
In  actions  of  ejectment  the  declaration  must  describe  the  land 
by  such  boundaries  or  other  characteristics  that  its  limits  can 
be  clearly  identified;  must  set  forth  the  plaintiff's  title  and 
possessory  rights;  must  allege  the  wrongful  entry  and  present 
occupation  of  the  land  by  the  defendant;  and  must  claim 
the  restoration  of  the  property  to  the  plaintiff,  with  damages  for 
the  intrusion  or  mesne  'profits  for  the  unlawful  occupation.  The 
general  issue  in  ejectment  is  nul  disseisin,  which  traverses  the 
present  title  and  possessory  right  of  the  plaintiff  as  well  as 
the  wrongful  entry  and  occupation  of  the  defendant,  thus  covering 
every  defence  available  in  this  action  except  that  of  estoppel. 

Rem.  In  the  action  of  ejectment,  unless  extended  in  its  scope 
by  local  statutes,  only  nominal  damages  can  be  recovered ;  and 
a  separate  action  of  trespass  for  the  mesne  profits  must  be  brought 
if  the  plaintiff  claims  compensation  for  the  use  of  the  property 
during  the  unlawful  occupation.  This  action  resembles  in  its 
pleadings  the  action  of  trespass  quare  clausum,  and  in  it  damages 
may  be  awarded  for  injury  to  the  property  as  well  as  for  its  use 
and  enjoyment. 

Read:  Shipman  on  Pleading,  §§  158-165; 

2  Greenleaf,  Evidence,  §§  303-337,  547-559. 

§  323.     Of   the   Pleadings   to  the   Merits  in  Extraordinary  and 
Auxiliary  Actions. 

The  pleadings  in  extraordinary  and  auxiliary  actions  have  no 
technical  form,   and  no  artificial  significance.     Their  declara- 


§  324        PROCEDURE   IN  COMMON   LAW   ACTIONS  355 

tions  or  petitions  must  contain  a  statement  of  facts  sufficient 
to  warrant  the  court  in  granting  the  desired  rehef,  and  must 
therefore  vary  with  the  circumstances  of  the  individual  case. 
They  have  no  general  issues  or  formal  pleas  in  bar,  —  the 
answers  of  respondents  raising  such  objections  to  the  declara- 
tions, or  presenting  such  new  questions,  as  may  be  necessary  to 
protect  their  rights.  To  these  answers  the  petitioners  reply  by 
amending  their  own  pleadings,  or  by  additional  statements  as 
the  progress  of  the  case  requires. 

Rem.  In  all  these  actions  local  custom  and  rules  of  practice 
largely  govern  the  procedure.  This  is  particularly  true  of  actions 
of  garnishment,  scire  facias,  and  writs  of  error,  each  of  which  is 
interwoven  more  or  less  with  other  actions  whose  proceedings 
are  often  of  a  distinctly  local  character.  Actions  of  mandamus, 
procedendo,  prohibition,  quo  warranto,  and  habeas  corpus  con- 
form more  closely  to  a  general  standard. 

Read:  Maxwell  on  Pleading  and  Practice,  §§  400-473,  625-638,  745- 

831,  934,  972-974,  986-990; 
Spelling  on  Injunctions,  etc.,  §§  1313-1361,  1623-1715,  1745-1764, 

1834-1888; 
Foster's  First  Book  of  Practice,  pp.  245-272; 
Bliss  on  Code  Pleading,  §§  443-460. 


§  324.     Of    the    Pleadings    tinder   the    New    Procedure:    Oode 
Pleading. 

The  confusion  introduced  into  the  system  of  common  law 
pleading  by  the  custom  of  joining  different  causes  of  action,  and 
sometimes  different  forms  of  action,  in  one  declaration;  by 
the  double  pleading  authorized  by  the  Statute  of  Anne ;  by  the 
extension  of  the  general  issue  to  cover  defences  logically  present- 
able only  under  special  pleas ;  and  by  the  numerous  discordant 
statutory  modifications  of  the  ancient  rules  by  the  legislatures 
of  our  American  States,  —  has  led  in  a  great  number  of  them 
to  the  substitution  for  the  common  law  system  of  another  system 
which  has  acquired  the  name  of  the  "New  Procedure"  or 
"Code  Pleading."  Code  Pleading  does  not  dispense  with  the 
common  law  actions  as  definite  groups  of  rights,  wrongs,  and 
remedies ;  nor  with  the  relations  of  causes  of  action  to  (iefences 
or  of  defences  to  pleadings ;  nor  with  the  substantial  allegations 
of  declarations,  demurrers,  traverses,  or  special  pleas ;   nor  with 


356  ELEMENTARY   LAW  §  324 

the  rules  which  require  all  pleadings  to  be  complete,  accurate, 
definite,  positive,  and  certain.  The  changes  made  pertain 
chiefly  to  form,  and  in  brief  are  these:  (1)  All  actions,  both 
legal  and  equitable,  are  known  by  the  same  name,  —  the  ''civil 
action,"  and  use  the  same  form  of  commencing  and  concluding 
pleadings,  and  pray  for  whatever  relief,  legal  or  equitable,  the 
violated  rights  of  the  plaintiff  may  demand;  (2)  All  causes  of 
action  may  be  joined  in  one  declaration,  in  different  counts, 

(a)  when  they  arise  out  of  the  same  transaction,  and  are  between 
the  same  parties  in  the  same  personal  or  official  capacity;    or 

(b)  when  they  are  all  based  on  contracts,  express  or  implied; 
or  (c)  where  all  arise  from  injuries  to  person  or  property;  or 
(d)  where  all  are  attacks  upon  the  reputation  of  the  plaintiff; 
or  (e)  where  all  are  claims  to  recover  personal  property  in 
specie ;  or  (f)  where  all  are  claims  to  recover  land ;  or  (g)  where 
all  relate  to  the  liability  of  trustees  in  reference  to  trust  prop- 
erty; (3)  All  pleadings  are  to  be  expressed  in  simple  language, 
avoiding  technical  terms  as  far  as  possible ;  (4)  The  declaration, 
otherwise  known  as  "the  complaint,"  must  contain  the  same 
substantive  allegations,  suited  to  set  forth  each  cause  of  action, 
as  at  common  law;  (5)  In  place  of  the  general  issue  and  the 
special  pleas  in  bar  the  defendant  must  present  an  "ansiver," 
traversing  in  plain  terms  such  allegations  of  the  complaint  as 
he  intends  to  deny,  expressly  admitting  whatever  he  does  not 
deny  or  else  averring  that  he  has  not  sufficient  information  to 
enable  him  to  admit  it  or  deny  it  and  therefore  puts  the  plaintiff 
on  its  proof,  and  setting  up  any  new  matter  in  avoidance  of 
those  allegations  which  he  does  not  admit  or  deny;  (6)  All  the 
defences  to  all  the  causes  of  action  are  to  be  included  in  one 
answer,  though  separately  stated,  and  may  be  based  on  any 
equitable  or  legal  ground:  (7)  Any  matter  of  set-off,  recoup- 
ment, or  counter-claim  may  be  advanced  by  the  defendant  in 
connection  with  his  answer,  but  must  be  averred  with  the  same 
certainty  as  in  a  declaration ;  (8)  In  any  respect  in  which  these 
pleadings  may  be  insufficient  in  matter  or  form  they  may  be 
amended,  or  new  matter  may  be  added,  in  order  fully  to  present 
the  controversy  to  the  court ;  (9)  To  a  denial  by  the  defendant 
the  plaintiff  makes  no  reply,  since  the  matter  stands  at  once  at 
issue,  but  to  a  confession  and  avoidance  he  demurs,  traverses, 


§  325        PROCEDURE   IN  COMMON  LAW  ACTIONS  357 

or  confesses  and  avoids  as  at  common  law,  and  to  a  set-off  he 
makes  answer  as  if  it  were  a  declaration  in  a  separate  suit; 
(10)  Every  demurrer  must  specially  point  out  the  defects  at 
which  it  is  aimed,  and  all  not  so  pointed  out  are  waived  or 
cured  by  verdict;  (11)  All  defects  of  jurisdiction  or  process  not 
apparent  on  the  writ  or  the  pleatlings  must  be  taken  advantage 
of  by  an  answer  like  a  plea  in  abatement,  or  they  will  be 
waived. 

Rem.  With  some  unimportant  variations  this  system  of  Code 
Pleading  has  now  been  adopted  in  more  than  half  of  our  States 
and  Territories,  and  will  j)robably  in  time  become  the  universal 
method  of  procedure.  The  evils  which  resulted  in  its  introduc- 
tion here  were  met  in  England  by  the  Hilary  Rules  in  A.  d.  1834, 
restricting  the  scope  of  the  general  issue  and  regulating  the  use 
of  counts  and  pleas ;  by  the  Rules  of  A.  D.  1883,  practically 
abolishing  the  general  issue;  and  by  other  statutory  and  judicial 
enactments. 

Read:  Andrews,  American  Law,  §§  035-041,  050; 

Maxwell  on  Code  Pleading,  pp.  1-19,  09-120,  300-407; 
Foster's  First  Book  of  Practice,  pp.  197-220; 
BUss  on  Code  Pleading,  §§  135-319,  323-442. 

§  325.     Of  the  Pleadings:  the  Final  Issue:  the  Trial. 

The  |)lea(Iings  of  the  parties  always  terminate  either  in  a 
demurrer  and  joinder  presenting  an  issue  of  law,  or  in  a  traverse 
and  similiter  creating  an  issue  of  fact.  An  issue  of  law  is  tried 
by  the  judge,  usually  upon  the  arguments  or  briefs  of  counsel. 
The  trial  of  an  issue  of  fart  is,  at  common  law,  conducted  before 
a  jury,  though  in  this  country  the  practice  of  waiving  a  jury, 
and  submitting  the  facts  to  the  judge  alone,  is  frequently  adoj)ted. 
Upon  every  trial  that  party  who,  under  the  pleadings,  has  the 
affirmative  of  the  i.ssue  must  go  forward,  —  the  demurrant  in 
an  issue  of  law,  the  last  pleader  before  the  final  traverse  in  an 
issue  of  fact,  —  and  upon  him  rests  the  burden  of  sustaining 
his  demurrer  by  demonstrating  its  legal  propositions,  or  his 
allegations  of  fact  by  a  j)reponderaiice  of  evidence. 

Rem.  A  demurrer  to  any  pleading  admits,  for  all  the  purposes 
of  the  demurrer,  the  facts  alleged  in  that  pleading;  and  hence 
these  facts  are  not  considiTcd  at  the  trial  on  the  demurrer, 
except  as  they  define  and  explain  the  issue  of  law.     .V  judgment 


358  ELEMENTARY   LAW  §  326 

of  the  court  sustaining  the  demurrer  either  terminates  the  action 
in  favor  of  the  demurrant,  or  imposes  on  his  adversary  the  duty 
of  amending  the  defect.  A  judgment  overruling  the  demurrer 
was  once  final  on  the  merits,  under  the  rule  that  a  demurrer 
admitted  the  facts  for  all  the  purposes  of  the  entire  case;  but 
it  is  now  generally  followed  by  an  order  to  the  demurrant  to 
answer  over,  which  he  does  by  the  general  issue  or  a  special 
plea. 

Read:  3  Bl.  Com.,  pp.  314-324; 

Andrews,  American  Law,  §§  890,  891; 

Stephen  on  Pleading,  §§  115-121; 

Perry  on  Pleading,  pp.  179-181,  191-193,  215-218,  234,  239,  240, 

292-294 ; 
Shipman  on  Pleading,  §§  65-69,  166,  170,  171,  175-186; 
Maxwell  on  Pleading  and  Practice,  §§  284-290,  335-342; 
Stephen  on  Evidence,  §§  93-97; 
Thayer  on  Evidence,  pp.  353-389; 
Rice  on  Evidence,  §§  60-92; 
Underhill  on  Evidence,  §§  247-254; 
Wharton  on  Evidence,  §§  353-371; 
Wood  on  Practice  Evidence,  §§  197-206. 

§  326.     Of  the  Trial:  the  Jury:   Challenges:   Order  of  Trial. 

The  jury  in  an  action  in  the  courts  of  common  law  is  a  body 
of  twelve  men,  summoned  from  the  county  where  the  court  is 
held,  and  duly  sworn  to  try  the  issues  of  fact  between  the  plain- 
tiff and  defendant,  and  to  decide  them  according  to  the  law 
and  the  evidence.  The  process,  by  which  the  sheriff  is  directed 
to  summon  into  court  the  men  who  are  to  constitute  the  jury, 
is  known  as  the  venire,  and  must  be  served  and  returned  in  the 
manner  provided  by  the  local  law.  When  the  jurors  appear  in 
court,  and  before  they  are  sworn  to  try  the  issue,  the  parties  to 
the  action  have  a  right  to  make  objection  either  to  the  whole 
body  of  jurors,  or  to  any  individual  among  them,  by  a  challenge. 
An  objection  to  the  whole  body  of  jurors  is  called  a  challenge 
to  the  array,  and  may  be  based  on  a  defect  in  the  venire  or  its 
mode  of  service,  or  on  some  partiality  of  the  sheriff  by  whom  it 
was  served.  An  objection  to  individual  jurors  is  called  a  chal- 
lenge to  the  polls,  and  rests  on  some  legal  disqualification  of  the 
juror,  or  his  probable  bias  in  favor  of  one  of  the  parties.  When 
a  challenge  to  the  polls  is  sustained  by  the  court  the  juror  is 
discharged  from  service  in  that  suit,  and  another  juror  is  sub- 
stituted in  his  place.    When  a  challenge  to  the  array  is  sustained 


§  326        PROCEDURE   IN  COMMON  LAW  ACTIONS  359 

a  new  venire  is  issued  and  served.  Besides  these  challenges  for 
cause  each  party  is  allowed,  in  some  States,  a  certain  number 
of  -peremptory  challenges,  for  which  no  reason  need  be  assigned. 
A  sufficient  number  of  duly  qualified  jurors  having  been  obtained 
the  official  oath  is  administered  to  them,  and  tlue  trial  then  begins. 

Rem.  Local  custom  enters  largely  into  the  conduct  of  pro- 
ceedings in  a  jury  trial,  especially  in  reference  to  their  order. 
Generally,  they  open  with  the  reading  of  the  pleadings  by  the 
respective  counsel,  followed  by  a  statement  of  the  counsel  for 
the  affirmative  explaining  his  claims,  and  briefly  outlining  the 
evidence  by  which  he  expects  to  substantiate  them.  His  testi- 
mony is  then  introduced,  and  when  it  is  completed  the  adverse 
counsel  makes  a  statement  of  his  claims  and  his  prospective 
evidence;  refuting  at  the  same  time,  so  far  as  he  is  able,  the 
claims  and  proof  of  his  antagonist.  His  evidence  being  offered, 
and  being  met  by  such  rebutting  testimony  as  the  affirmative 
can  present,  the  counsel  for  the  affirmative  closes  the  case  with 
an  argument  in  support  of  his  side  of  the  issue.  The  judge  then 
instructs  the  jury  as  to  the  nature  of  the  cause,  defines  the  issues, 
points  out  the  rules  of  law  which  govern  their  decision,  and  com- 
mits the  case  to  their  deliberations.  After  due  consideration  the 
jury  return  their  verdict,  and  if  it  is  accepted  by  the  judge  it 
forms  the  basis  of  his  judgment,  with  the  announcement  of  which 
the  trial  ends.  One  of  the  most  important  steps  in  these  proceed- 
ings is  the  opejiing  statement  of  the  counsel  for  the  affirmative. 
On  it  the  jury  depend  for  their  ability  to  comprehend  the  issues 
and  apply  to  them  the  future  testimony,  and  consec|uently  it 
shoulci  never  be  omitted.  To  serve  its  purpose  it  must  be 
(1)  truthful,  or  such  as  the  evidenc-e  about  to  be  off'ered  will  sus- 
tain ;  (2)  probable,  or  such  as  the  jury  will  accept  for  the  time 
being  a,s  likely  to  be  correct ;  (3)  favorable  to  the  claims  of  the 
counsel  making  it;  (4)  clear  to  the  understanding  of  the  jury; 
(5)  brief,  confining  itself  to  the  sufficient  explanation  of  mate- 
rial facts;  an(J  (0)  pleasing  to  the  jury  in  its  manner  of  delivery. 
Such  a  statement  goes  far  toward  tlie  eventual  success  of  the 
party  off'ering  it,  because  the  impressions  made  by  it  are  first 
impressions,  which  are  rarely  eradicated  by  any  subsequent  dis- 
coveries or  convictions. 

Read:  3  Bl.  Com.,  pp.  349-366; 

Andrews,  American  Law,  §§  768-777; 
Maxwell  on  Pleading  and  Practice,  §§  160-188; 
Foster's  First  Book  of  Practice,  pp.  383-387; 
Robinson,  Forensic  Oratory,  §§  .57-59,  313-320. 


360  ELEMENTARY  LAW  §§  327,  328 

§  327.     Of  the  Trial:  the  Evidence. 

Evidence  is  the  means  by  which  the  existence  or  non-existence 
of  alleged  facts  is  ascertained.  It  is  of  three  kinds :  (1)  Actual 
observation ;  (2)  The  testimony  of  persons  whose  knowledge  of 
the  facts  has  been  derived  from  actual  observation;  (3)  Logi- 
cal inferences  from  facts  which  have  been  actually  observed 
or  are  established  by  proper  testimony.  The  first  and  second 
are  different  forms  of  "direct  evideiice" ;  thB  third  is  known  as 
"indirect,  injere^itial,  or  circumstantial  evidence." 

Rem.  Evidence  of  all  these  kinds  is  employed  by  courts  in 
their  judicial  investigations;  not,  hov/cver,  with  the  same  lati- 
tude as  by  people  at  large  in  reference  to  general  affairs.  The 
peculiar  character  of  a  jury  trial  with  its  well-defined  issues, 
and  the  necessity  for  expedition  in  the  disposal  of  cases,  have 
led  to  the  adoption  of  legal  rules  which  sometimes  exclude  much 
that  on  ordinary  questions  would  deserve  attention ;  sometimes 
enlarge  the  effect  of  testimony  by  giving  it  an  artificial  signifi- 
cance ;  and  sometimes  supply  its  place  by  presumptions.  These 
rules  often  appear  intricate  and  unreasonable  to  those  by  whom 
their  purpose  is  not  understood. 

Read:  3  Bl.  Com.,  pp.  366-375; 

Andrews,  American  Law,  §§  779,  867-871,  875,  876; 

Stephen  on  Evidence,  Introduction; 

Starkie  on  Evidence,  pp.  15-21; 

1  Greenleaf  on  Evidence,  §§  1-3,  7-13  o; 

Thayer  on  Evidence,  pp.  263-276,  508-538; 

McKelvey  on  Evidence,  §§  1-10; 

Jones  on  Evidence,  §§  1-8; 

Bradner  on  Evidence,  ch.  i; 

Rice  on  Evidence,  §§  317-319; 

Underhill  on  Evidence,  §§  1-6; 

Wharton  on  Evidence,  §§  1-9; 

Wigmore  on  Evidence,  §§  1-3,  38-43. 

§  328.     Of  the  Trial:    the  Evidence:    Material  Evidence:    Rele- 
vant Evidence. 

The  first  rule,  distinguishing  legal  evidence  from  ordinary 
evidence,  provides  that  it  must  be  confined  to  the  substance  of 
the  issue.  The  issue  resulting  from  the  pleadings  embodies  the 
decisive  points  in  the  controversy,  and  consists  in  the  affirma- 
tion and  denial  of  certain  essential  and  specific  facts  which  are 
therefore  known  as  material  facts.  Direct  evidence  by  observa- 
tion,  or  by  the  testimony  of  actual  observers,  in  support  or 


§  329         PROCEDURE   IN   COMMON   LAW   ACTIONS  361 

contradiction  of  these  essential  facts  is  called  material  evidence. 
Indirect  evidence,  or  evidence  of  non-material  facts  from  which 
an  inference  might  be  logically  drawn  in  favor  of  or  against 
material  facts,   is   called  relevant  evidence. 

Rem.  Whether  or  not  proposed  evidence  is  material  is  seldom 
open  to  dispute,  and  when  disjjuted  is  determined  by  comparing 
the  fact  offered  to  be  proved  with  the  facts  alleged  and  traversed 
by  the  pleadings.  Whether  or  not  evidence  is  relevant  is  a  far 
more  difficult  and  frequently  recurring  question,  and  is  decided 
by  ascertaining:  first,  whether  the  fact  to  be  established  by 
the  evidence  is  so  related  to  the  material  facts  as  to  have  any 
inferential  value  whatever  in  their  support  or  contradiction; 
and  second,  whether  its  inferential  value  is  great  enough  to 
warrant  its  submission  to  the  jury.  All  material  evidence  is 
ifso  facto  admissible  on  the  trial  of  the  case.  Whether  alleged 
relevant  evidence  is  admissible  is  a  question  partly  of  logic, 
partly  of  exjjerience,  partly  of  conjecture,  which  must  be  settled 
by  the  judge  when  the  evidence  is  offered.  Mistakes  in  his 
rulings,  if  properly  excepted  to,  are  reviewable  on  a  writ  of 
error. 

Read:  Andrews,  American  Law,  §§  872,  877-884; 
Stephen  on  Evidence,  §§  1-13; 
Starkie  on  Evidence,  pp.  67-81,  616-618,  839-869; 
1  Greenleaf  on  Evidence,  §§  14-14  v; 
McKelvey  on  Evidence,  §§  90-120; 
Reynolds  on  Evidence,  §§  1-16; 
Jones  on  Evidence,  §§  135-17.5  a,  2.32-234; 
Bradner  on  Evidence,  chaps,  ii,  iii,  §§  1,2; 
Rice  on  Evidence,  §§  1-1.5,  251-261; 
Underhill  on  E\'idence,  §§  7-24; 
Wharton  on  Evidence,  §§  20-57; 
Wifijniore  on  Evidence,  §§  9-36; 

Burrill  on  Circumstantial  Eviilence,  pp.  1-247,  727-739; 
Wills  on  Circumstantial  Evidence,  chaps,  i-viii; 
Gillett  on  Indirect  and  Collateral  Evidence,  §§  51-97. 

§  329.  Of  the  Trial:  the  Evidence  :  Confidential  Communications. 
A  second  rule  distinguisliing  legal  evidence  from  ordinary 
evidence  is  that  which  forbids  courts,  from  motives  of  public 
policy,  to  receive  judicial  information  through  certain  channels. 
Thus  jmhlic  ofpcers  are  not  allowed  to  testify  to  any  secret  atl'airs 
of  state,  or  to  any  matters  which  the  public  interest  re(|uires  to 
be  concealed.  Counsel  are  not  permitted  to  testify  to  any  facts 
confided  to  them  by  their  clients,  nor  can  a  clwnt  be  compelled 


362  ELEMENTARY  LAW  §  330 

to  disclose  any  communication  passing  between  himself  and  his 
attorney.  Husband  ami  wife  cannot  give  evidence  in  court 
against  each  other  except  in  actions  where  some  personal  injury, 
inflicted  by  one  upon  the  other,  is  the  subject  of  controversy. 
Oral  evidence  of  transactions  with  deceased  persons,  in  support 
of  claims  against  their  estates,  is  generally  prohibited  unless 
antagonistic  witnesses  on  their  behalf  appear.  No  witness  is 
obliged  to  disclose  facts  which  would  expose  him  to  prosecution 
for  a  criminal  offence,  or  to  any  public  penalty  or  forfeiture. 

Rem.  At  common  law  disclosures  made  to  physicians  and 
spiritual  advisers  in  the  course  of  their  professional  duties  were 
not  regarded  as  confidential  and  protected.  The  statutes  of 
many  of  our  States,  however,  place  them  in  the  same  class  as 
those  made  to  public  officers  and  attorneys;  and  where  there 
are  no  such  statutes  the  courts  are  reluctant  to  require  their 
revelation. 

Read:  Andrews,  American  Law,  §§  873,  894; 
Starkie  on  Evidence,  pp.  39-42 ; 
1  Greenleaf  on  Evidence,  §§  236-254  c,  334-346; 
McKelvey  on  Evidence,  §§  208-228; 
Reynolds  on  Evidence,  §§  80-95; 
Jones  on  Evidence,  §§  733-762; 
Bradner  on  Evidence,  ch.  iv; 
Rice  on  Evidence,  §§  289-291; 
Underhill  on  Evidence,  §§  165-178; 
Wharton  on  Evidence,  §§  576-608; 
Wigmore  on  Evidence,  §§  2285-2396; 
Rapalje  on  Witnesses,  §§  270-278; 
Hageman  on  Privileged  Communications,  §§  1-324; 
Maxwell  on  Pleading  and  Practice,  §§  202-209. 


§  330.     Of  the  Trial:  the  Evidence:  Hearsay  Evidence. 

The  third  rule  distinguishing  legal  evidence  from  ordinary 
evidence  is  that  which  compels  the  courts  to  reject  hearsay  evi- 
dence. Hearsay  evidence  is  the  evidence  offered  by  a  witness 
whose  testimony  consists  of  a  narration  of  what  other  persons 
have  communicated  to  him  concerning  the  material  or  relevant 
facts.  The  witness  in  this  case  does  not  state  any  material  or 
relevant  fact  as  being  known  to  him  by  actual  observation,  but 
merely  repeats  the  information  given  to  him  by  others.  His 
evidence  is,  therefore,  second  hand,  and  though  in  ordinary  life 
it  would    be    received    as    of   some   value   the    courts  exclude 


§  330         PROCEDURE   IN   COMMON   LAW  ACTIONS  363 

it:  jirst,  because  of  its  inherent  unreliability;  and  second, 
because  the  statement  of  third  persons  which  the  witness  now 
repeats  was  not  originally  made  in  open  court  and  under  oath, 
and  subject  to  cross-examination  by  the  party  against  whom  it 
is  now  offered. 

Rem.  Hearsay  evidence  must  not  be  confounded  vnih.  testi- 
mony concerning  statements  made  by  third  persons  when  the 
fact  that  such  statements  were  made  is,  in  itself,  a  material  or 
relevant  fact.  Of  such  statements  there  are  ten  well-recognized 
classes:  (1)  Admissions,  or  declarations  against  interest  made 
by  a  party-litigant,  or  by  his  agent,  or  by  some  person  in 
whose  right  he  claims ;  (2)  Confessions,  or  acknowledgments  by 
accused  or  suspected  persons,  tending  to  show  their  guilt; 
(3)  Dying  declarations,  or  statements  made  under  apprehension 
of  immediate  death,  by  a  person  alleged  to  have  been  killed 
by  another,  describing  the  method  and  the  perpetrator  of  the 
homicide;  (4)  Statements  made  by  a  person  since  dead,  insane, 
or  beyond  the  reach  of  process,  while  testifying  under  oath  in  the 
same  action,  or  in  another  action  involving  the  same  issues 
between  the  same  parties  or  their  representatives  in  interest; 
(5)  Statements  made  by  persons  since  deceased  or  insane,  or  now 
beyond  the  reach  of  a  subpoena,  in  the  ordinary  course  of  business, 
or  in  the  discharge  of  some  professional  duty,  or  in  reference  to 
the  existence  of  some  public  right  or  custom,  while  as  yet  no  dis- 
pute concerning  such  right  or  custom  had  arisen:  (6)  State- 
ments made  by  persons  since  deceased  or  insane,  or  now  beyond 
the  jurisdiction  of  the  court,  concerning  pedigree,  relationship, 
births,  deaths,  or  marriages,  where  the  person  making  the 
statement  was  a  blood  relation  of  the  individual  to  whom  the 
statement  referred  or  was  the  wife  or  husband  of  such  blood 
relation,  and  where  the  statement  was  made  before  the  facts 
themselves  became  the  subject  of  controversy;  (7)  Statements 
made  by  a  testator  since  deceased  concerning  the  contents  of  his 
will,  when  the  will,  though  proved  to  have  once  existed,  cannot 
now  be  found ;  (8)  Statements  made  by  a  witness,  when  testifying 
at  a  former  stage  of  the  same  action,  who  has  now  given  evidence 
inconsistent  therewith;  (9)  Statements  accompanying  an  act 
or  condition  which  has  already  been  the  subject  of  testimony 
in  the  same  action,  and  which  tends  to  explain  such  act  or  con- 
dition; (10)  Statements  which  form  an  essential  part  of  the 
transaction  out  of  which  the  cause  of  action  or  the  defence  has 
arisen,  and  hence  are  included  among  the  res  gestcr.  In  every 
one  of  these  ten  classes  of  statements  the  fact  that  the  statement 
was  made  by  the  person  who  made  it  tends  to  prove  the  fact 
stated,  and  hence  the  statement  is  not  second  hand  or  hearsay 


364  ELEMENTARY   LAW  §  331 

evidence,  nor  does  it  resemble  hearsay  except  that  it  is  com- 
municated to  the  court  by  witnesses  who  heard  it.  A  similar, 
but  not  the  same,  distinction  must  be  made  between  hearsay 
evidence  and  evidence  concerning  statements  made  by  a  witness 
out  of  court  at  variance  with  his  testimony  in  court,  for  the  pur- 
pose of  contradicting  him  or  of  impeaching  his  veracity.  The 
rules  governing  all  these  statements  apply  equally  to  cases 
where  the  statements  were  made  by  signs  or  in  writing,  as  by 
entries  in  account  books,  or  in  family  or  public  records,  or  by 
inscriptions  upon  tombstones,  or  in  private  letters,  or  in  articles 
in  the  public  press. 

Read:  Andrews,  American  Law,  §  885; 
Stephen  on  Evidence,  §§  14-35,  55-57; 
Starkie  on  Evidence,  pp.  43-66,  81-96; 
1  Greenleaf  on  Evidence,  §§  98-235; 
McKelvey  on  Evidence,  §§  58-89,  138-198  c; 
Reynolds  on  Evidence,  §§  16-49; 
Jones  on  Evidence,  §§  235-358; 
Bradner  on  Evidence,  chaps,  vii,  xii-xiv; 
Rice  on  Evidence,  §§  211-250; 
Underhill  on  Evidence,  §§  50-124; 
Wharton  on  Evidence,  §§  170-270,  1075-1220; 
Wigmore  on  Evidence,  §§  1360-1810; 
Wood  on  Practice  Evidence,  §§  83-187; 

Gillett  on  Indirect  and  Collateral  Evidence,  §§  1-50,  98-206,  223- 
299. 

§  331.     Of  the  Trial:  the  Evidence:  the  Best  Evidence. 

A  fourth  rule  distinguishing  legal  evidence  from  ordinary  evi- 
dence is  that  which  requires  the  party  offering  testimony  to  pro- 
duce the  best  evidence  within  his  power.  This  rule  obliges  him, 
in  offering  written  evidence,  to  present  the  original  documents; 
or  to  prove  that  they  once  existed  and  have  been  destroyed; 
or  that  they  are  in  the  possession  of  the  adverse  party;  or  that 
he  has  used  due  diligence  in  searching  for  them  in  the  places 
where  they  should  be  found  and  has  searched  in  vain.  If  the 
originals  cannot  be  produced  duplicates,  having  the  same  legal 
effect  upon  the  rights  of  the  parties  as  the  originals,  may  be 
offered.  If  these  are  wanting  properly  identified  copies  stand 
next  in  order;  then  written  memoranda,  representing  the  sub- 
stance of  the  document  as  the  parties  agreed  that  it  should  be 
made ;  and  finally,  as  a  last  resort,  oral  evidence  of  its  execution 
and  contents.  The  original  document  itself  is  known  as  'primary 
evidence;    the   other'  modes   of   proof  are   secondary   evidence. 


§  332         PROCEDURE   IN   COMMON   LAW   ACTIONS  305 

Secondary  evidence  may,  in  some  cases,  be  of  as  high  probative 
value  as  the  primary  could  be,  but  this  does  not  entitle  it  to  ad- 
mission if  the  primary  can  be  obtained. 

Rem.  This  rule,  as  a  rule  excluding  evidence,  applies  only  to 
written  documents ;  but  as  a  rule  affecting  the  value  and  credi- 
bility of  evidence  it  is  always  recognized  whenever  a  party  rests 
his  case  on  testimony  evidently  inferior  in  certainty  or  reliability 
to  that  which,  if  his  claims  be  true,  he  might  have  introduced. 

Read:  Andrews,  American  Law,  §§  886,  887; 
Starkie  on  Evidence,  pp.  641-646; 
1  Greenleaf  on  Evidence,  §§  82-97  d; 
Tliayer  on  Evidence,  pp.  484-507 ; 
McKelvey  on  Evidence,  §§  252-256; 
Reynokis  on  Evidence,  §  54 ; 
Jones  on  Evidence,  §§  176-231 ; 
Bradner  on  Evidence,  ch.  viii,  §§  1-9,  21-31; 
Rice  on  Ev-idence,  §§  93-124; 
Underhill  on  Evidence,  §§  30-39; 
Wigmore  on  Evidence,  §§  1171-1175; 
Wood  on  Practice  Evidence,  §§  1-13. 


§  332.  Of  the  Trial :  the  Evidence ;  Fictions  and  Presumptions. 
The  fifth  rule  distinguishing  legal  evidence  from  ordinary 
evidence  is  that  which  recognizes  legal  fictions  and  presumptions 
as  substitutes  for  actual  evidence.  A  legal  fiction  is  a  conclusion 
of  law,  necessitated  by  justice  but  contrary  to  truth  though  in 
its  nature  possible,  which  is  adopted  by  the  law  either  because 
the  actual  condition  of  the  facts  places  them  beyond  the  reach 
of  law,  or  because  the  law  if  applied  to  their  actual  condition 
would  inevitably  work  a  wrong.  These  fictions  are  binding 
on  the  courts  in  all  cases  where  they  do  not  lead  to  a  perversion 
rather  than  a  furtherance  of  justice.  Presiimptimis  are  con- 
clusions as  to  the  existence  or  non-existence  of  disputed  facts, 
derived  from  the  consideration  of  facts  already  known.  They 
are  of  two  classes:  (1)  Presumptions  of  fact;  and  (2)  Presump- 
tions of  law.  A  presumption  of  fact  is  a  conclusion  of  fact  reached 
by  logical  inference  from  certain  known  facts  as  accepted 
premises,  and  is  identical  with  inferential  or  circumstantial 
evidence.  Such  a  presumption  is  of  the  same  probative  force  in 
legal  as  in  ordinary  evidence.  It  binds  a  court  or  jury  only  in 
th(>  same  wav  and  to  the  same  extent  as  anv  other  lo<ri(  al  infer- 


366  iELEMENTARY   LAW  §  332 

ence,  and  may  be  ignored  where  the  premises  are  doubtful  or 
the  inference  is  weak.  A  presumption  of  law  is  a  conclusion 
adopted  arbitrarily  by  the  law  as  its  chosen  interpretation  of 
established  farts.  Such  a  presumption  has  no  place  in  ordinary 
evidence,  and  cannot  be  disregarded  by  the  court  or  jury  with- 
out such  error  as  may  invalidate  the  future  judgment.  Some 
presumptions  of  law  are  irrebuttable,  and  whenever  the  facts  to 
which  the  law  attaches  them  are  proved  the  conclusion  stands 
in  place  of  all  other  evidence  upon  the  point  to  which  the  pre- 
sumption relates,  and  cannot  be  contradicted.  Other  presump- 
tions of  law  may  be  rebutted  by  evidence,  proving  the  contrary 
of  the  conclusion  which  the  law  draws  from  the  facts.  It  is  the 
tendency  of  modern  rules  to  permit  the  rebuttal  of  all  legal 
presumptions,  and  thus  render  them  inoperative  when  contrary 
to  demonstrable  truth. 

Rem.  Legal  fictions  usually  affirm  the  existence  of  that 
which  does  not  exist,  as  for  example  that  a  husband  and  wife  are 
one  person ;  or  deny  the  existence  of  that  which  does  exist, 
as  for  example  that  a  disseisee  who  has  regained  the  seisin  was 
ever  deprived  of  it.  They  are  comparatively  few.  Presumptions, 
on  the  other  hand,  are  very  numerous.  Those  most  frequently 
encountered  in  the  courts  are:  (1)  Presumptions  against  igno- 
rance and  wrong;  (2)  Presumptions  that  persons  who  have 
rights  assert  them ;  (3)  Presumptions  that  the  course  of  nature 
is  followed;  (4)  Presumptions  that  the  usages  of  business  and 
society  are  observed;  (5)  Presumptions  that  once  existing 
states  of  fact  continue  according  to  their  natural  duration; 
(6)  Presumptions  as  to  the  rights,  duties,  and  habilities  of  per- 
sons; (7)    Presumptions  as  to  time. 

Read:  Rob.  Am.  Jur.,  §§  365-387; 
Andrews,  American  Law,  §  892; 
Stephen  on  Evidence,  §§  98-105; 
Starkie  on  Evidence,  pp.  741-764; 
1  Greenleaf  on  Evidence,  §§14  w-Sl  d; 
Thayer  on  Evidence,  pp.  313-352; 
McKelvey  on  Evidence,  §§  33-57; 
Jones  on  Evidence,  §§  9-104; 
Bradner  on  Evidence,  chaps,  xvi-xviii; 
Rice  on  Evidence,  §§  28-59; 
Underbill  on  Evidence,  §§  205-223; 
Wharton  on  Evidence,  §§  1226-1365; 
Wigmore  on  Evidence,  §§  2483-2539; 
Wood  on  Practice  Evidence,  §§  53-82; 
Lawson  on  Presumptive  Evidence,  pp.  5-674. 


§§  333,  334      PROCEDURE  IN  COMMON  LAW  ACTIONS       367 

§  333.  Of  the  Trial:  the  Evidence  :  the  Relation  of  Oral  Evidence 
to  Written  Instruments. 
The  sixth  rule  distinguishing  legal  evidence  from  ordinary 
evidence  is  that  which  forbids  the  parties  to  a  written  instru- 
ment to  contradict  its  language,  or  to  vary  the  interpretation 
which  the  law  puts  upon  its  terms,  by  offering  in  court  any  oral 
testimony  which  is  inconsistent  with  it.  This  rule  rests  on  the 
presumption  that  the  parties,  having  deliberately  chosen  the 
language  of  the  instrument  to  express  their  obligations,  with  a 
full  knowledge  of  the  interpretation  which  the  law  would  attach 
to  their  words,  must  at  that  time  have  intended  to  be  bound  by 
that  language  as  thus  legally  interpreted;  and  therefore  cannot 
iiow  be  permitted  to  aver  that  they  had  a  different  intention 
which  controlled  their  conduct. 

Rem.  This  rule,  although  imperative  within  its  proper 
sphere,  covers  a  very  narrow  field.  It  does  not  prevent  any 
persons,  except  the  parties  to  the  instrument  and  their  privies, 
from  contradicting  either  its  words  or  meaning.  It  does  not 
forbid  even  the  j^arties  to  prove  that  there  were  collateral  or 
.subsequent  agreements;  or  the  existence  of  qualifying  circum- 
stances attending  the  execution  of  the  in.strument  in  tjuestion ; 
or  its  invalidity  for  illegality,  incapacity,  or  fraud ;  or  to  identify 
by  oral  evidence  the  subject-matter  of  the  instrument  or  other- 
wise explain  its  ambiguities;  or  to  show  that  the  instrument 
was  but  one  part  of  a  larger  transaction,  in  the  light  of  whose 
entire  facts  the  instrument  must  be  construed. 
Read:  Stephen  on  Evidence,  §§  90-92; 

Starkie  on  Evidence,  pp.  648-735; 

1  Greenleaf  on  Evidence,  §§  275-305  m; 

Thayer  on  Evidence,  pp.  390-483; 

McKelvey  on  Evidence,  §§  274-282; 

Reynolds  on  Evidence,  §§  69-72; 

Jones  on  Evidence,  §§  412-499; 

Bradner  on  Evidence,  chaps,  ix,  x; 

Rice  on  Evidence,  §§  156-188; 

Wharton  on  Evidence,  §§  8.50-1071; 

Wifimore  on  Evidence,  §§  2400-2478; 

Wood  on  Practice  Evidence,  §§  14-52; 

Browne  on  Parol  Evidence,  §§  1-28. 

§  334.     Of  the  Trial :    the  Production  of  the  Evidence :    Facta 
Judicially  Noticed. 

The  facts  which  a  jury  are  permitted  to  con.sider  under  the 
six  foregoing  rules  may  be  brought  to  their  attention  in  four 


368  ELEMENTARY   LAW  §  334 

methods:  (1)  By  judicial  notice;  (2)  By  personal  observation; 
(3)  By  documentary  evidence;  (4)  By  the  testimony  of  wit- 
nesses. Many  facts  available  in  evidence  in  every  trial  are  pre- 
sumed by  law  to  be  already  within  the  knowledge  of  the  court 
and  jury,  and  hence  require  no  proof.  Of  these  facts  courts  are 
said  to  take  judicial  notice.  In  these  are  included:  first,  all 
undisputed  material  facts  alleged  in  the  pleadings,  with  such 
other  facts  as  they  necessarily  imply ;  and  second,  all  those  facts 
which  are,  or  are  supposed  to  be,  part  of  the  common  stock  of 
popular  knowledge.  All  matters  within  these  two  classes  the 
court  and  jury  must  consider  as  already  before  them,  and  may 
refresh  their  recollection  concerning  them  by  reference  to  any 
adequate  and  accessible  authorities.  But  neither  the  judge  nor 
the  jury  can  consider  a  private  fact  of  which  they  have  a  merely 
•personal  knowledge,  however  important  may  be  its  bearing  on 
the  issue,  unless  it  has  been  brought  to  their  attention  by  evi- 
dence properly  produced  in  open  court. 

Rem.  The  '^common  stock  of  pnjnilar  knowledge"  embraces 
the  following  facts:  (1)  Political  facts,  such  as  the  existence  of 
other  nations,  their  flags  and  seals,  the  law  of  nations,  the 
territorial  divisions  and  civil  constitution  of  the  State,  the  public 
matters  which  affect  the  State,  its  elections  and  general  legis- 
lative meetings,  its  weights  and  measures,  its  coins  and  other 
circulating  medium,  and  its  public  and  special  fasts  and  festi- 
vals ;  (2)  Legal  facts,  such  as  the  public  laws  of  the  State,  its 
various  courts  with  their  jurisdiction  and  rules  of  practice,  their 
officers  and  seals,  the  names  and  persons  of  their  judges,  their 
general  customs  of  trade,  and  other  matters  of  law  and  usage 
which  are  generally  known  to  all  the  citizens ;  (3)  Official  facts, 
such  as  the  names  and  functions  of  the  President,  Vice-President, 
senators,  representatives,  ambassadors,  marshals,  sheriffs,  and 
all  who  hold  office  in  the  State  by  virtue  of  public  election  or 
appointment,  the  signatures  of  the  President,  marshals,  and 
sheriffs,  and  the  seals  of  notaries ;  (4)  Public  history,  embracing 
the  facts  which  constitute  the  political,  social,  and  topographical 
development  of  the  State,  and  which  are  generally  accepted  as 
true ;  (5)  Scientific  facts,  comprising  those  facts  in  nature  which 
are  permanent  and  uniform  and  do  not  require  special  investiga- 
tion to  discover  them,  —  such  as  the  number  of  days  in  a  given 
month,  the  succession  of  the  seasons,  the  coincidence  of  days 
of  the  week  with  certain  days  of  the  month  and  year,  the  qualities 
of   common  substances,  the  processes  of  well-known  arts,  the 


§  335        PROCEDURE  IN  COMMON  LAW  ACTIONS  369 

instincts,  passions,  and  physical  characteristics  of  ordinary 
human  beings,  and  the  natural  consequences  of  familiar  acts; 
(6)  The  vernacular  language,  or  the  meaning  of  all  customary 
English  words,  and  of  such  terms  of  art  as  are  in  common  use. 

Read:  Andrews,  American  Law,  §  888; 
Stephen  on  Evidence,  §§  58-60; 
Starkie  on  Evidence,  pp.  735-741; 
1  Greenleaf  on  Evidence,  §§3  a-6  e; 
Thayer  on  Evidence,  pp.  277-312; 
McKelvey  on  Evidence,  §§  11-23; 
Reynolds  on  Evidence,  §  56; 
Jones  on  Evidence,  §§  105-134; 
Bradner  on  Evidence,  ch.  vi ; 
Rice  on  Evidence,  §§  16-27; 
Underhill  on  Evidence,  §§  236-244; 
Wharton  on  Evidence,  §§  276-340; 
Wigmore  on  E\ddence,  §§  2565-2596; 
Wood  on  Practice  Evidence,  §§  188-196. 

S  336.    Of  the  Trial:  the  Production  of  the  Evidence  :  Inspection 
of  Objects. 

In  the  trial  of  an  action  that  form  of  direct  evidence  which 
consists  in  the  actual  observation  of  persons,  places,  and  objects 
may  be  employed  whenever  it  is  practicable.  With  the  consent 
of  the  parties  and  the  court  the  jury  may  be  taken  to  view  locali- 
ties, examine  landmarks,  or  inspect  articles  which  for  any  reason 
cannot  be  produced  in  court.  Persons  and  portable  objects  may 
be  brought  into  the  court-room  and  be  subjected  to  immediate 
scrutiny;  and  where  the  originals  are  wanting  models,  photo- 
graphs, maps,  or  diagrams,  duly  identified,  may  be  used  for  the 
same  purpose.  Transactions  which  were  material  to  the  con- 
troversy may  be  reproduced  by  imitation  before  the  jury,  in 
order  to  illustrate  the  testimony  and  enable  them  to  understand 
it  and  apply  it;  and  other  tests  and  experiments  may  be  made 
in  their  presence  whenever,  in  the  judgment  of  the  court,  their 
comprehension  of  the  case  would  be  thereby  increased. 

Rem.  The  extent  to  which  evidence  of  this  species  can  be 
produced  in  any  cause  is  largely  within  the  discretion  of  the  judge, 
and  unless  his  ruling  on  the  question  works  manifest  injustice 
to  the  party  it  is  no  ground  of  error.  A  wide  latitude  in  this 
direction  is  now  generally  permitted  where  it  would  not  unrea- 
sonably protract  tlie  trial,  or  confuse  the  minds  of  the  jury  with 
needless  details. 

24 


370  ELEMENTARY  LAW  §  336 

Read:  Andrews,  American  Law,  §  889; 
1  Greenleaf  on  E\'idence,  §  13  o; 
Reynolds  on  Evidence,  §§  115  a-115  c; 
Jones  on  Evidence,  §§  393-411; 
Underbill  on  Evidence,  §  39; 
Wharton  on  Evidence,  §§345,  346; 
Wigmore  on  Evidence,  §§  1150-1168; 
Harris  on  Identification,  §§  157-178,  573-612; 
Maxwell  on  Pleading  and  Practice,  §§  281,  282. 


§  336.     Of  the  Trial :  the  Production    of   the    Evidence :    Docu- 
mentary Evidence. 

When  the  issue  involves  the  existence  or  the  contents  of  a 
written  instrument,  the  instrument  itself  must  be  produced  in 
court  either  m  specie,  or  through  that  secondary  evidence  which 
may  be  employed  when  primary  evidence  cannot  be  obtained. 
An  instrument  or  document  is  any  substance  upon  which  are 
inscribed  or  otherwise  expressed  any  marks  or  signs  capable  of 
being  read.  Documents  are  either  public  or  private.  A  public 
document  is  one  which  a  public  officer  is  obliged  by  law  to  keep 
and  preserve;  and  these  may  be  judicial  or  ministerial,  of 
record  or  not  of  record.  Public  documents  import  verity,  and 
are  prima  facie  proof  of  the  facts  which  are  entered  on  them  by 
the  proper  officer  in  the  fulfilment  of  his  legal  duty.  When 
the  law  permits  them  to  be  taken  into  court  they  may  be  sub- 
mitted to  the  inspection  of  the  jury,  and  where  this  is  impos- 
sible copies  may  be  offered  in  their  stead.  Copies  of  public 
documents  are  of  various  kinds:  (1)  Exemplifications,  which 
are  copies  authenticated  by  the  seal  of  the  State  or  of  the  court ; 
(2)  Examined  and  suiorn  copies,  which  are  made  by  private 
copyists  who  compare  them  with  the  originals  and  swear  to 
their  identity  in  the  presence  of  the  jury;  (3)  Office  copies, 
which  are  made  by  the  officer  who  is  in  charge  of  the  originals 
and  is  empowered  by  law  to  give  authoritative  copies ;  (4)  Certi- 
fied copies,  which  may  be  prepared  by  any  copyist  but  are  cer- 
tified to  be  correct  by  the  official  custodian  of  the  document. 
Exemplifications  prove  their  own  official  character  and  authen- 
ticity, since  the  courts  take  judicial  notice  of  the  official  seal  which 
gives  them  a  sufficient  sanction ;  but  other  copies  must  be  authen- 
ticated in  the  mode  prescribed  by  the  statutes  of  the  State  in 
whose  courts  they  are  to  be  offered.    In  tlais  country  exemplified 


§  336        PROCEDURE   IN   COMMON   LAW  ACTIONS  371 

or  certified  copies  are  usually  employed.  A  private  document 
is  one  made  by  or  between  private  parties,  or  by  a  public  officer 
of  his  own  volition  and  without  the  express  or  implied  com- 
mandment of  the  law.  When  private  documents  are  introduced 
as  evidence  their  execution  must  be  duly  proved  according  to 
the  requirements  of  the  law ;  and  if  the  originals  are  not  obtain- 
able the  duplicates  or  copies,  which  may  then  be  offered,  must 
be  shown  to  be  correct  by  other  testimony.  Unlike  the  state- 
ments in  a  public  document,  those  in  a  private  document  do  not 
import  verity.  The  existence,  contents,  and  legal  efficacy  of 
the  document  itself  are  established  by  its  production  and  its 
interpretation  by  the  court;  but  except  so  far  as  its  recitals 
work  an  estoppel,  or  operate  as  admissions  or  declarations  made 
by  the  parties  to  the  document,  they  have  no  further  evidential 
value. 

Rem.  Where  the  execution  of  a  private  document  is  dis- 
puted the  handwriting  of  the  alleged  signers  and  witnesses 
may  be  proved  by  the  testimony  of  persons  who  have  seen  them 
write,  or  are  otherwise  acquainted  with  their  signatures;  or 
by  comparing  the  document  with  known  specimens  of  their 
handwriting,  in  reference  to  which  the  evidence  of  experts  is 
admissible.  Ancient  deeds,  and  other  instruments  exceeding 
thirty  years  of  age,  are  presumed  to  have  been  executed  by 
their  apparent  signers,  since  the  lapse  of  a  generation  may  ex- 
tinguish all  possible  means  of  identifying  their  handwriting. 
The  genuineness  of  other  private  memoranda  may  be  estab- 
lished in  a  similar  manner,  and  then  if  relevant  to  the  issue 
they  may  be  admitted  in  evidence. 

Read:  Stephen  on  Evidence,  §§  36-47,  61-89; 
Starkie  on  E\-idence,  pp.  255-583 ; 
1  Greenleaf  on  Evidence,  §§  470-581  a; 
McKelvey  on  Evidence,  §§  257-273; 
Reynolds  on  Evidence,  §§  59-68,  109-115; 
Jones  on  Evidence,  §§  500-633; 
Bradner  on  Evidence,  ch.  viii,  §§  10-36; 
Rice  on  Evidence,  §§  12.5-155; 
Underbill  on  Evidence,  §§  125-160; 
Wharton  on  Evidence,  §§  60-163,  614-841; 
Wigmore  on  E%idence.  §§  1177-1.3.54,  2129-2169; 
Wood  on  Practice  Evidence,  §§  207-249; 
Harris  on  Identification,  §§  288-479; 
Lawson  on  Expert  and  Opinion  Evidence,  pp.  327—444; 
Maxwell  on  Pleading  and  Practice,  §§  79-86. 


372  ELEMENTARY   LAW  §  337 

§  337.     Of  the  Trial:    the  Production  of  the  Evidence:    Testi- 
mony of  Witnesses:  Competency  of  Witnesses. 

A  witness  is  a  person  who  is  duly  sworn  and  examined,  during 
a  judicial  investigation,  in  reference  to  matters  at  issue  in  the 
cause.  Any  sane  person  who  understands  and  recognizes  the 
obligations  of  an  oath,  unless  he  is  disqualified  by  positive  law,  is 
a  competent  witness.  Formerly  all  those  who  had  been  convicted 
of  certain  infamous  crimes  such  as  forgery  or  perjury,  and  all 
those  who  were  interested  in  the  merits  of  the  controversy,  were 
treated  as  incompetent;  but  such  persons  are  now  generally 
allowed  to  testify,  and  their  interest  or  infamy  is  regarded  only 
in  its  effect  upon  their  credibility.  Any  competent  person  may 
be  utilized  as  a  witness  if  he  can  testify  from  his  actual  observation 
as  to  the  existence  or  non-existence  of  any  material  or  relevant 
fact  embraced  in  the  issue,  unless  he  occupies  toward  the  State, 
or  one  of  the  parties  to  the  cause,  some  relation  in  view  of  which 
the  law,  from  motives  of  public  policy,  forbids  him  to  disclose 
the  facts  within  his  knowledge. 

Rem.  Although  a  witness  is  usually  employed  to  testify  to 
facts  which  become  known  to  him  by  actual  observation  and 
experience  yet  there  are  some  occasions  when  he  is  allowed  to 
state  the  impressioji  made  upon  his  mind  by  the  facts  as  they 
occurred.  Various  matters  of  fact,  such  as  quantity,  size, 
duration,  speed,  value,  danger,  health,  damage  and  the  like 
are  so  commingled,  in  the  mind  and  language  of  the  witness, 
with  matters  of  inference  derived  therefrom  that  evidence  of  the 
precise  facts  observed  could  rarely  be  obtained,  or  any  evidence 
at  all  concerning  them  could  be  presented  to  the  court,  unless 
the  witness  were  permitted  to  state  them  in  the  form  of  his  im- 
pressions or  opinions,  whose  value  can  be  tested  by  examining 
the  circumstances  on  which  they  were  based.  Hence,  where  the 
witness  has  observed  the  facts,  and  is  capable  of  perceiving 
what  they  indicate,  his  opinion  is  received  and  submitted  to 
the  jury ;  leaving  them  to  determine  how  far  it  is  well  founded, 
and  to  accept  it  or  modify  it  or  reject  it  according  to  their  own 
judgment.  Such  a  witness  is  not  an  expert,  though  often 
erroneously  called  such,  but  a  common  witness  giving  his  testi- 
mony in  a  form  well  known  to  ordinary  evidence;  and  ad- 
mitted by  the  courts  because  of  its  necessity  and  general  reliability. 
An  expert  ivitness  is  a  person  who,  by  his  training  and  experi- 
ence in  some  art  or  science,  is  better  qualified  to  perceive, 
understand,  and  explain  certain  matters  of  fact  than  other  men 


§  338        PROCEDURE   IN  COMMON   LAW  ACTIONS  373 

are.  Such  a  witness  may  not  only  state  what  he  has  observed 
and  what  it  signifies,  but  may  give  an  opinion  based  on  matters 
not  within  his  personal  knowledge  when  communicated  to  him 
by  others,  or  on  hypothetical  conditions  submitted  to  him  in 
open  court.  His  opinion  in  such  cases,  though  it  may  be  scien- 
tifically correct  and  of  the  highest  value,  is  not  binding  on  the 
jury  but  may  be  weighed  by  them  and  set  aside  if  not  agreeing 
with  their  own.  Before  an  expert  can  be  allowed  to  testify  in 
that  capacity  his  qualifications  must  be  examined,  and  be 
adjudged  sufficient  by  the  court. 

Read:  Andrews,  American  Law,  §§  889  a,  893; 

Stephen  on  Evidence,  §§  48-54,  106-122; 

Starkie  on  Evidence,  pp.  21-39,  102-145; 

1  Greeiileaf  on  Evidence,  §§  306-430  q,  441  6-441 1; 

McKelvey  on  Evidence,  §§  121-137,  199-207; 

Reynolds  on  E\Tldence,  §§  50-53,  78,  79; 

Jones  on  Evidence,  §§  359-392,  712-796; 

Bradner  on  Evidence,  chs.  v,  xv; 

Rice  on  Evidence,  §§  189-210,  262-273; 

Underbill  on  Evidence,  §§  18.5-202,  275-324; 

Wharton  on  Evidence,  §§  376-490; 

Wigmore  on  Evidence,  §§  483-764,  1813-1862.  1917-2027; 

Rapalje  on  Witnesses,  §§  1-179,  286-307; 

Rogers  on  Expert  Testimony,  §§  1-207; 

Lavvson  on  Expert  and  Opinion  Evidence,  pp.  1-616; 

Gillett  on  Indirect  and  Collateral  Evidence,  §§  207-223; 

Harrison  Identification,  §§  179-231; 

Maxwell  on  Pleading  and  Practice,  §§  189-201,  210-216. 

§  338.     Of  the  Trial:  the  Production  of  the  Evidence  :  Testimony 
of  Witnesses  :   the  Ezamination  of  Witnesses  in  Oourt. 

The  examination  of  a  toitness  in  court  is  divided  into  three 
stages:  (1)  The  direct  examination  by  the  party  on  whose 
behalf  he  is  called;  (2)  The  cross-examination  by  the  adverse 
party;  (3)  The  redirect  examination.  On  the  dirert  examina- 
tion he  can  be  questioned  only  upon  material  or  relevant  facts, 
or  matters  necessary  to  their  explanation.  No  leading  question.'^, 
or  fjuestions  which  directly  suggest  to  him  the  answer  he  is 
desired  to  give,  can  be  propounded  to  him  unless  he  shows  him- 
self to  be  hostile  to  the  party  examining  him,  and  can  in  no  other 
manner  be  compelled  to  disclose  the  truth;  nor  can  he  be  asked 
a  (juestion  which  assumes  the  existence  of  a  material  or  relevant 
fact  that  has  not  been  already  admitted  or  established.  On  this 
examination  the  witness  may  refresh  his  memorj/  by  reference  to 
writings  or  other  data,  provided  that  he  can  thereafter  testify  to 


374  ELEMENTARY   LAW  §  339 

the  facts  from  his  own  recollection.  On  the  cross-examination  a 
far  wider  latitude  is  allowed.  Leading  questions  may  be  asked, 
collateral  facts  elicited,  and  inquiries  made  concerning  any 
matter  which,  in  the  opinion  of  the  judge,  would  serve  to  test 
the  veracity  and  knowledge  of  the  witness.  A  witness  cannot, 
however,  be  cross-examined  as  to  any  immaterial  or  irrelevant 
fact  merely  for  the  purpose  of  contradicting  him  thereafter  by 
other  evidence,  and  thereby  showing  that  in  this  particular 
instance  he  has  been  mistaken.  The  redirect  examination  is 
intended  to  enable  the  witness  to  explain,  if  necessary,  the  state- 
ments which  he  has  made  upon  the  cross-examination,  and 
properly  should  be  confined  thereto,  though  a  much  larger  range 
is  often  allowed  in  modern  practice. 

Rem.  The  process  by  which  witnesses  are  summoned  to 
appear  and  testify  is  a  subpoena,  followed  when  necessary  by 
a  capias  to  secure  their  attendance.  Where  written  instruments, 
in  the  possession  of  a  third  person,  are  required  as  evidence 
such  person  may  be  summoned  to  appear  and  produce  them  by 
a  subpoena  duces  tecum..  If  such  instruments  are  in  the  posses- 
sion of  the  adverse  party  notice  may  be  served  upon  him  to 
bring  them  into  court,  and  if  he  fails  to  do  so  secondary  evidence 
of  their  existence  and  contents  may  be  given. 

Read:  Andrews,  American  Law,  §§  895,  896; 
Stephen  on  Evidence,  §§  123-140; 
Starkie  on  Evidence,  pp.  146-254; 
1  Greenleaf  on  Evidence,  §§  431-469  n; 
McKelvey  on  Evidence,  §§  229-251; 
Reynolds  on  Evidence,  §§  73-77,  96-108,  116-130; 
Jones  on  Evidence,  §§  797-903; 
Bradner  on  Evidence,  ch.  xx; 
Rice  on  Evidence,  §§  274-284,  314-316; 
Underbill  on  Evidence,  §§  330-346,  366-386; 
Wharton  on  Evidence,  §§  491-548,  572-575; 
Wigmore  on  Evidence,   §§  766-812,   1863-1910,  2030-2125,  2175- 

2282; 
Rapalje  on  Witnesses,  §§  229-285; 

Maxwell  on  Pleading  and  Practice,  §§  136,  137,  214,  217-256,  265- 
278,  283. 

§  339.     Of  the  Trial :    the  Production  of  the  Evidence :    Testi- 
mony of  Witnesses  :  Depositions. 
Where  a  witness,  through  infirmity  of  body,  or  on  account  of 
his  remoteness  or  his  absence  from  the  jurisdiction,  cannot  be 
compelled  to  present  himself  in  court  to  testify,  his  evidence  may 


§  340        PROCEDURE   IN   COMMON   LAW  ACTIONS  375 

be  taken  in  writing  by  a  magistrate,  or  by  some  other  person  duly 
authorized  thereto  by  the  mandate  of  the  court  or  the  agreement 
of  the  parties,  and  be  submitted  to  the  jury  at  the  trial  of  the 
case.  Testimony  thus  taken  is  called  a  deposition.  It  is  not 
documentary  e\ddence  although  it  is  in  writing,  but  is  merely  a 
convenient  method  of  presenting  to  the  court  the  statements  of  a 
witness  who  is  otherwise  inaccessible.  A  deposition  can  be 
taken  only  after  due  notice  given  to  the  adverse  party  in  the 
manner  required  by  the  local  law,  and  must  be  conducted  by 
examining  the  witness  under  oath  as  if  the  testimony  were  being 
given  by  him  in  open  court.  The  parties  may  be  represented 
by  their  counsel  who  propound  the  questions  viva  voce,  or  written 
interrogatories  and  cross-interrogatories  may  be  prepared  be- 
forehand, and  forwarded  to  the  magistrate  who  conducts  the 
examination,  and  reduces  the  evidence  to  writing.  The  depo- 
sition when  completed  is  generally  read  to  the  witness,  and 
if  correct  is  signed  by  him ;  and  is  then  certified  and  sealed  up 
by  the  magistrate,  and  returned  to  the  court.  If  the  reason  for 
taking  the  deposition  ceases  before  the  trial,  and  the  witness 
is  then  able  to  be  present,  he  must  be  summoned  to  appear  and 
testify,  and  the  deposition  will  not  be  admissible. 

Rem.  The  power  to  obtain  the  testimony  of  absent  witnesses, 
by  means  of  depositions,  is  not  confined  to  any  jurisdiction. 
In  the  same  State  where  the  witness  resides,  and  in  any  other 
State  in  the  civilized  world,  this  privilege  may  be  enjoyed, 
through  the  agency  of  local  judicial  or  administrative  officers, 
as  a  right  recognized  by  the  comity  of  nations,  and  necessary  to 
the  enforcement  of  public  as  well  as  private  law. 

Read:  1  Greenleaf  on  Evidence,  §§  163  6,  163c,  163^,320-325,  516, 
517, 552; 
Jones  on  Evidence,  §§  634-711; 
Rice  on  Evidence,  §§  297-301 ; 
Undorhill  on  Evidence,  §§  355-364; 
Maxwell  on  Pleading  and  Practice,  §§  101-135; 
Foster's  First  Book  of  Practice,  pp.  406-412. 

§  340.  Of  the  Trial :  the  Production  of  the  Evidence  :  Testi- 
mony of  Witnesses  :  Contradiction  and  Impeachment 
of  Witnesses. 

One  purpose  of  (lie  cross-examination  of  a  witness  is  to  show 
that  he  is  unreliaijle,  either  because  he  cannot  accurately  re- 


376  ELEMENTARY   LAW  §  341 

member  and  describe  the  facts  concerning  which  he  testifies,  or 
because  he  voluntarily  or  carelessly  states  what  he  knows  to  be 
untrue.  This  also  is  the  purpose  of  his  contradiction  or  impeach- 
ment. The  contradiction  of  a  witness  consists:  (1)  In  proving 
by  other  witnesses  that  material  parts  of  his  testimony  are 
false;  (2)  In  showing  that  he  has  himself  on  other  occasions 
made  assertions  contrary  thereto.  The  former  contradiction 
attacks  the  ability  or  integrity  of  the  witness,  and  may  be  made 
as  part  of  the  general  evidence  in  the  case.  The  latter  contradic- 
tion attacks  his  veracity,  and  must  be  specially  offered  after  a 
foundation  has  been  laid  for  it  by  asking  him,  on  his  own  ex- 
amination, whether  he  has  not  made  the  inconsistent  state- 
ments. The  impeachment  of  a  witness  consists  in  proving,  by 
independent  testimony,  that  according  to  the  current  opinion  of 
the  community  in  which  he  lives  his  truthfulness  is  not  up  to  the 
standard  of  that  of  men  in  general.  Evidence  to  this  effect  may 
be  given  in  court  by  any  persons  familiar  with  his  reputation  for 
veracity. 

Rem.  The  questions  raised  by  the  attempts  to  contradict 
and  to  impeach  a  witness  are  not  precisely  identical.  The  first 
endeavors  to  show  that  in  reference  to  the  testimony  already 
given  by  him  he  has  intentionally  or  unintentionally  stated  an 
untruth.  The  second  is  an  effort  to  prove  that  by  his  habitual 
open  falsehoods  he  has  acquired  such  a  reputation  that  no  one 
can  safely  rely  upon  his  word ;  and  is  a  far  more  serious  attack 
upon  his  character  than  his  mere  contradiction.  It  is  also 
seldom  resorted  to  because  more  difficult  to  prove,  and  almost 
always  leads  to  protracted  counter-evidence  with  little  positive 
result. 

Read:  1  Greenleaf  on  Evidence,  §§  442-465  a; 

Jones  on  Evidence,  §§  844-870; 

Rice  on  Evidence,  §§  285-288; 

Underbill  on  Evidence,  §§  347-354  6; 

Wharton  on  Evidence,  §§  549-571; 

Wigmore  on  Evidence,  §§  875-1144; 

Rapalje  on  Witnesses,  §§  180-228; 

Maxwell  on  Pleading  and  Practice,  §§  257-264. 

§  341.     Of  the  Trial :    Motion  for  a  Nonsuit :    Demurrer  to  the 
Evidence. 

Where  the  plaintiff  has  the  affirmative  of  the  issue,  and  has 
introduced  his  evidence,  if  the  defendant  regards  the  evidence 


§  342        PROCEDURE    IN   COMMON   LAW  ACTIONS  377 

as  legally  insufficient  to  make  a  prima  facie  case  in  support  of 
the  plaintiff's  claim,  he  may  decline  to  otter  evidence  in  his  own 
favor  and  move  for  a  judgment  of  nonsuit  against  the  plaintiff. 
If  this  motion  prevails  a  judgment  of  nonsuit  is  rendered  v^hich 
closes  the  case  and  usually  awards  costs  to  the  defendant;  but 
is  no  bar  to  the  immediate  institution  of  another  suit  of  the  same 
character  by  the  plaintiff.  If  the  motion  is  denied  the  case  pro- 
ceeds as  if  it  had  not  been  made.  An  ancient  method  of  taking 
advantage  of  such  insufficient  testimony  was  by  a  demurrer  to 
the  evidence.  This  demurrer  admitted  the  truth  of  the  matters 
established  by  the  evidence,  but  denied  that  they  legally  entitled 
the  plaintiff  to  a  verdict.  The  judgment  of  the  court  on  this 
demurrer  was  a  final  judgment  and  a  bar  to  further  actions. 
Where  the  defendant  has  the  affirmative  of  the  issue,  the  plain- 
tiff may  in  like  manner  demur  to  liis  evidence,  and  a  judgment 
on  this  demurrer  will  be  final. 

Rem.  Still  another  method,  available  to  either  party  under 
similar  conditions,  is  to  waive  the  privilege  of  ])ro(lucing  testi- 
mony to  meet  the  insufficient  adverse  evidence,  and  to  submit 
the  cause  to  the  jury  with  a  re(|uest  to  the  court  to  instruct  them 
to  find  a  verdict  in  his  favor.  In  most  instances  this  latter 
method  is  now  adopted  in  preference  to  a  demurrer  to  the  evi- 
dence, though  motions  for  nonsuit  are  still  in  common  use. 

Read:  Andrews,  American  Law,  §§  776,  778,  780-783; 
Stephen  on  Pleading,  §  124; 
Starkie  on  Evidence,  pp.  797,  798,  806-810; 
McKelvey  on  Evidence,  §§  283-287; 
Maxwell  on  Pleading  and  Practice,  §§  279,  280; 
Foster's  First  Book  of  Practice,  pp.  387-395. 

§  342.     Of  the  Trial:  the  Charge  to  the  Jury. 

When  the  evidence  is  completed,  and  the  arguments  of  counsel 
have  been  made,  it  l)ecomes  the  duty  of  the  judge  to  instruct 
the  jury  in  those  rules  of  law  which  are  to  guide  them  in  arriving 
at  their  verdict.  These  instructions  constitute  the  charge  to  the 
jury,  and  must  not  only  state  the  law  correctly,  but  state  it  so 
clearly  and  com|)letely  as  to  enable  the  jury  to  pro])erly  apj)ly 
the  evidence,  and  to  decide  legally  every  question  embodied 
in  the  issue.  If  either  party  desires  the  judge  to  give  any  particu- 
lar instructions  to  the  jury  he  must  frame  them  in  written  or 


378  ELEMENTARY   LAW  §  343 

oral  requests  to  charge,  according  to  the  local  custom,  and  sub- 
mit them  in  due  season  to  the  court ;  and  a  refusal  of  the  judge 
to  incorporate  into  his  charge  any  legal  proposition,  which  the 
requesting  party  has  a  right  to  have  communicated  to  the  jury, 
is  an  error  for  which  the  judgment  may  be  reversed  and  a  new 
trial  granted.  To  any  such  refusal,  as  well  as  to  the  insertion 
by  the  judge  of  any  objectionable  matter  into  the  charge,  the 
aggrieved  party  must  take  immediate  exception  in  order  that  it 
may  be  made  to  appear  upon  the  record  as  a  ground  of  error. 

Rem.  The  power  of  a  court  to  direct  a  jury  what  verdict 
they  must  render,  in  order  to  conform  to  the  law  and  the  evidence, 
seems  to  be  generally  conceded  in  cases  where  but  one  verdict 
could  be  legally  sustained;  but  in  some  States  it  is  the  custom 
to  permit  the  jury  first  to  exercise  their  own  discretion,  and  if 
they  fall  into  error  then  to  correct  it  by  reversal  or  new  trial. 

Read:  Andrews,  American  Law,  §§  784,  785; 
Starkie  on  Evidence,  pp.  584-616,  764-810; 
Thayer  on  Evidence,  pp.  183-262 ; 
Wigmore  on  Evidence,  §§  2550-2559; 
Maxwell  on  Pleading  and  Practice,  §§  291-312. 

§  343.     Of  the  Trial:   Deliberations  and  Verdict  of  the  Jury. 

The  charge  of  the  judge  being  completed  the  jury  retire 
under  the  custody  of  an  officer,  and  deliberate  in  'private  upon 
the  questions  submitted  to  them ;  having  before  them  the  plead- 
ings, documents,  depositions,  and  other  physical  objects  com- 
prised in  the  evidence.  The  oral  testimony  they  are  expected  to 
remember;  and  if  they  do  not  recollect  it  they  should  return  to 
the  court  room,  and  hear  it  read  from  the  official  notes  of  the 
judge  and  other  officers.  They  cannot  examine  any  witnesses 
by  themselves,  nor  can  they  lawfully  communicate  to  one  another 
any  material  or  relevant  fact  which  has  not  been  regularly  in- 
troduced in  the  testimony.  If  they  are  in  doubt  concerning  any 
question  of  law  which  was,  or  should  have  been,  embraced  in 
the  charge  they  may  return  and  request  additional  instructions. 
When,  after  due  deliberation,  they  cannot  agree  on  a  decision 
they  must  report  the  disagreement  to  the  judge  who,  if  he  deems 
the  prospect  of  agreement  hopeless,  takes  back  the  papers, 
discharges  them  from  further  duty  in  the  case,  and  orders  a  new 
trial  before  another  jury.     When  they  do  agree  they  appear  in 


§  344        PROCEDURE   IN   COMMON   LAW  ACTIONS  379 

court  and  announce  their  verdict.  In  reaching  their  conclusions 
they  must  be  governed  by  the  law  and  the  evidence  or  their 
verdict  will  be  invalid;  although  they  are  not  bound  to  believe 
the  testimony  of  individual  witnesses  if  it  appears  to  them 
incredible,   even   when   it   has   not   been   contradicted. 

Rem.  The  verdict  of  a  jury  may  be  either  general  or  special. 
A  general  verdict  finds  the  issue  in  general  terms  for  the  plaintiff 
or  defendant,  and  is  presumed  to  embrace  a  decision  of  every 
(question  of  fact  presented  in  the  issue.  A  special  verdict  recites 
in  detail  all  the  facts  as  the  jury  consider  them  to  have  been 
proved,  and  submits  them  to  the  court  with  the  statement  that 
if,  upon  said  facts,  the  plaintiff  is  in  law  entitled  to  a  verdict 
they  find  one  in  his  favor,  —  naming  the  thing  or  damages 
awarded,  —  with  his  costs;  otherwise  for  the  defendant,  with  his 
costs.  The  special  verdict  is  seldom  adopted  except  in  compli- 
cated cases  where  the  issues  are  numerous  or  the  rules  of  law 
obscure,  although  its  use  would  certainly  relieve  a  jury  trial 
from  many  of  the  difficulties  and  uncertainties  which  now 
attend  it. 

Read:  Andrews,  American  Law,  §§  786,  789; 

Stephen  on  Pleading,  §§  122-126; 

Starkie  on  Evidence,  pp.  811-879; 

McKelvey  on  Evidence,  §§  24-32; 

Rice  on  Evidence,  §§  292-296,  321; 

Maxwell  on  Pleading  and  Practice,  §§  313-334. 

§  344.     Of   the   Trial :    Stay  of   Judgment :    Motion  in  Arrest : 
Motion  for  a  New  Trial. 

The  verdict  of  a  jury  is  of  no  practical  effect  until  it  is  accepted 
by  the  court  and  made  the  basis  of  a  judgment.  Two  methods 
of  objecting  to  its  acceptance  are  open  to  the  defeated  party: 
(1)  By  a  motion  in  arrest  of  judgment;  (2)  By  a  motion  for  a 
new  trial.  A  motion  in  arrest  may  be  made  where  it  is  apparent 
on  the  face  of  the  record  that  the  verdict  is  improper,  or  that  a 
judgment  in  pursuance  of  it  could  not  be  sustained.  If  this 
motion  prevails  the  court  will  order  a  repleader,  or  reconstruc- 
tion of  the  pleadings  as  recorded  from  the  point  where  the  first 
material  defect  appears,  and  another  trial  on  the  issues  thus 
amended.  Where  a  verdict  has  been  improperly  rendered  for 
the  defendant,  and  the  record  shows  that  neither  on  his  present 
pleadings,  nor  on  any  others  that  he  can  offer,  a  verdict  in  his 
favor  could  lawfully  he  given,  the  court,  without  directing  a  re- 


380  ELEMENTARY  LAW  §  344 

pleader  or  new  trial,  may  order  a  judgment  non  obstante  veredicto 
to  be  entered  for  the  plaintiff.  A  motion  for  a  new  trial  is  based 
on  errors  not  apparent  on  the  record.  Any  fault  in  the  proceed- 
ings, whether  wilful  or  otherwise,  which  would  render  a  judg- 
ment upon  the  verdict,  as  it  stands,  a  perversion  of  justice,  and 
which  cannot  be  reached  by  a  motion  in  arrest  because  not  ap- 
parent on  the  record,  may  be  the  ground  for  a  new  trial.  Among 
these  faults  are :  (1)  Illegal  conduct  of  one  or  more  of  the  jurors 
in  relation  to  the  action,  or  of  the  prevailing  party  in  relation 
to  the  jury ;  (2)  Material  contradictions  between  the  facts  found 
by  the  verdict  and  the  facts  evidently  established  by  credible 
testimony;  (3)  Palpable  variance  between  the  rules  of  law  de- 
livered in  the  charge  of  the  court  and  the  rules  by  which  the  jury 
must  have  been  guided  in  order  to  reach  such  a  verdict  as  they 
have  rendered;  (4)  Erroneous  admission  or  exclusion  of  evi- 
dence to  the  prejudice  of  the  defeated  party;  (5)  Errors  in  the 
charge  of  the  court  manifestly  influencing  the  verdict  to  the  injury 
of  the  defeated  party;  (6)  Repugnancy  or  uncertainty  in  the 
verdict ;  (7)  An  award  of  damages  so  excessive  or  so  inadequate 
as  to  indicate  corruption  or  gross  mistake  on  the  part  of  the 
jury.  On  a  motion  for  a  new  trial  for  causes  not  already  within 
the  knowledge  of  the  court  the  causes  must  be  set  forth  in  the 
motion,  and  on  the  motion  issues  may  be  joined  and  witnesses 
examined  as  on  other  questions  of  fact. 

Rem.  Numerous  defects  in  the  record  were  once  available 
on  motion  in  arrest.  By  the  various  fitatutes  of  jeofails  and 
amendments,  particularly  those  of  27  Eliz.  ch.  5  and  4  Anne, 
ch.  16,  it  is  now  provided  that  no  defect  of  form  shall  be  per- 
mitted to  defeat  a  judgment,  unless  it  has  been  made  the  ground 
of  a  special  demurrer  at  the  proper  time  in  the  course  of  the 
pleadings,  —  thus  giving  the  opposite  party  an  opportunity  to 
amend  or  the  court  to  render  a  decision  on  which  a  writ  of  error 
would  lie.  Moreover,  even  substantial  defects  will  now  be  aided 
by  the  verdict  itself  where  the  decision  of  the  jury  necessarily 
covers  the  matter  omitted  or  erroneously  alleged,  and  could  not 
have  been  rendered  unless  such  matter  had  been  proved  to  their 
satisfaction  and  to  the  acceptance  of  the  judge.  But  when  an 
allegation  essential  to  the  statement  of  a  cause  of  action  is 
entirely  wanting  in  the  pleadings,  or  the  record  contains  as- 
sertions which  show  that  the  party  making  them  has  no  ground 
of  action  or  defence  a  verdict  in  his  favor  will  not  cure  the  defect. 


§  345        PROCEDURE   IN  COMMON   LAW  ACTIONS  381 

Read:  Andrews,  American  Law,  §  790; 
Stephen  on  Pleading,  §  127; 
Starkie  on  Evidence,  pp.  798-806; 
Maxwell  on  Pleading  and  Practice,  §§  343-399; 
Foster's  First  Book  of  Practice,  pp.  395-397. 

§  346.     Of  the  Judgment. 

When  a  verdict  is  accepted  by  the  court,  and  no  motion  in 
arrest  or  for  a  new  trial  has  been  interposed,  it  is  followed  by 
a  judgment.  A  judgment  is  the  decision  of  a  court,  awarded  and 
pronounced  by  the  judge,  upon  some  question  legally  submitted 
to  it.  Judgments  are  either  interlocutory  or  final.  An  inter- 
locutory judgment  is  a  decision  of  the  court  uj)on  some  question 
arising  during  the  proceedings  in  an  action,  and  for  these  there 
are  numerous  occasions  in  nearly  every  suit  at  law.  A  final 
judgment  is  the  decision  which  puts  an  end  to  the  action  it- 
self. Final  judgments  may  be  rendered  in  the  following  cases : 
(1)  Upon  nonsuit,  —  where  the  plaintiff,  having  commenced  an 
action,  abandons  it,  or  on  the  trial  fails  to  produce  prima  facie 
proof  of  the  matters  alleged  by  him  in  his  pleadings ;  (2)  Upon 
retraxit,  —  where  the  [)laintiff  comes  personally  into  court,  after 
his  declaration  has  been  filed,  and  voluntarily  withdraws  his 
suit,  and  admits  that  he  has  no  cause  of  action;  (3)  Upon  de- 
fault, —  where  the  defendant  does  not  appear  to  defend,  and 
the  plaintiff  takes  judgment  against  him  for  the  debt  or  damages 
and  costs;  (4)  Upon  confession,  —  where  the  defendant  in  an 
action  to  recover  a  debt  acknowledges  the  indebtedness  in  court, 
and  the  plaintiff  takes  judgment  against  him  for  the  debt  and 
costs ;  (5)  Upon  nihil  dicit,  —  where  the  defendant  appears  but 
refuses  to  plead  according  to  the  due  course  of  the  proceedings, 
and  the  plaintiff  takes  judgment  against  him  for  his  debt  or 
damages  and  costs ;  (6)  Upon  demurrer,  —  where  an  issue  of 
law  which  is  decisive  of  the  action  is  presented  to  the  court, 
and  the  prevailing  party  takes  a  judgment  for  his  costs,  and  if 
he  be  the  plaintiff  for  his  debt  or  damages  also;  (7)  Upon  a 
verdict  rendered  by  a  jury.  The  effect  of  a  judgment  upon  non- 
suit is  simply  to  terminate  the  present  action,  and  does  not 
prejudice  the  future  claims  of  either  party.  All  other  forms  of 
judgment  conclude  both  the  parties  and  their  privies  as  to  all 
matters  which  were  embraced  in  the  issue,  and  were  necessarily 


382  ELEMENTARY  LAW  §  346 

passed  upon  by  the  jury  or  the  court  in  arriving  at  the  judgment, 
whenever  the  same  questions  concerning  them  are  raised  in  any 
subsequent  action  which  is  brought  between  the  same  parties 
to  accompUsh  the  same  purpose.  Questions  thus  determined 
once  for  all  are  called  res  judicata,  and  when  pleaded  in  bar 
constitute  the  defence  known  as  former  recovery.  A  judgment 
cannot  be  collaterally  attacked  except  for  want  of  jurisdiction 
in  the  court  which  rendered  it  or  for  fraud  in  its  procurement, 
but  may  be  vacated  or  reversed  or  modified  upon  a  writ  of  error 
or  appeal. 

Rem.  In  all  cases  where  a  judgment  awards  a  debt  or  dam- 
ages, except  upon  the  verdict  of  a  jury,  its  amount  must  be 
ascertained  before  the  judgment  either  by  agreement  of  the 
parties,  or  by  a  proceeding  called  a  writ  of  inquiry,  or  a  hearing 
in  damages  in  the  presence  of  the  judge  or  of  some  other  person 
appointed  for  that  purpose.  In  judgments  rendered  upon  the 
verdict  of  a  jury  the  amount  named  in  the  verdict  must  be 
followed  in  the  judgment,  unless  it  exceeds  the  sum  named  in 
the  declaration.  When  this  occurs  the  plaintiff  must  enter  a 
remittitur  for  the  excess,  and  take  judgment  only  for  the  amount 
claimed,  or  the  judgment  will  be  reversed.  When  in  the  opinion 
of  the  judge  the  amount  awarded  by  the  verdict  is  excessive, 
and  a  new  trial  should  on  that  account  be  granted,  a  remittitur 
may  also  be  entered  for  the  excess  by  the  prevailing  party  with 
the  consent  of  the  court,  and  the  verdict  thus  be  saved.  The 
recovery  of  costs,  both  as  to  the  right  thereto  and  the  amount 
thereof,  is  usually  regulated  by  local  statutes. 

Read:  Andrews,  American  Law,  §§  776,  787,  788,  791,  792;  • 
Stephen  on  Pleading,  §  129; 

Maxwell  on  Pleading  and  Practice,  §§  18,  159,  962; 
Foster's  First  Book  of  Practice,  pp.  368-377. 

§  346.     Of  Stay  of  Execution:    Audita   Querela:    Appeal:   Writ 
of  Error. 

The  process  by  which  a  final  judgment  is  enforced  against 
the  property  or  person  of  the  defeated  party  is  called  a  torit  of 
execution.  This  issues  out  of  the  court  as  a  matter  of  course, 
upon  the  rendition  of  the  judgment,  unless  it  is  stayed  by  the 
judge,  or  is  prevented  by  its  payment  or  by  some  other  satis- 
faction of  the  judgment  which  is  accepted  by  the  victor  and 
entered  on  the  record.  An  execution  may  be  stayed  by  the 
judge  on  account  of  either  one  of  three  proceedings:    (1)  Audita 


§  347        PROCEDURE  IN  COMMON  LAW  ACTIONS  383 

Querela;  (2)  Appeal;  (3)  Writ  of  Error.  An  audita  querela  is 
a  proceeding  in  which  the  defeated  party,  in  a  motion  for  relief, 
seeks  a  stay  of  execution  on  the  ground  that  since  the  judgment 
was  rendered  he  has  been  legally  released  or  discharged  from 
its  obligations.  An  appeal  is  a  method  of  removing  a  cause,  upon 
which  an  inferior  tribunal  has  passed  judgment,  into  a  court  of 
superior  jurisdiction  for  another  investigation  of  the  issues  of 
fact  and  law.  Appeals  are  regulated  by  local  statutes,  and  may 
or  may  not  vacate  the  judgment  of  the  court  below ;  but  they  do 
not  usually  prevent  the  execution  of  the  judgment  w^hen  it  im- 
poses a  specific  active  duty  which  it  is  necessary  that  some  one 
should  immediately  perform.  In  the  ordinary  actions  at  com- 
mon law,  however,  an  appeal  stays  the  execution  until  the  final 
judgment  in  the  higher  court.  A  torit  of  error  may  operate  as  a 
supersedeas,  or  stay  of  execution,  if  instituted  before  execution 
issues,  and  may  be  either  unconditional  or  upon  adequate  se- 
curity to  the  victorious  party;  or  the  court  may  issue  the  execu- 
tion and  protect  the  defeated  party  by  a  bond. 

Rem.  Other  proceedings  of  similar  purpose  and  results  are 
known  to  the  local  laws  of  several  of  our  States,  such  as  motions 
in  error,  petitions  for  a  new  trial,  etc.  These  follow  in  their  gen- 
eral method  the  more  universal  proceedings  above  described. 

Read:  Andrews,  American  Law,  §§  794-804; 
Stephen  on  Pleading,  §  131; 

Maxwell  on  Pleading  and  Practice,  §§  953,  972-989; 
Foster's  First  Book  of  Practice,  pp.  290-308. 

§  347.     Of  the  Execution. 

A  writ  of  execution  is  a  process,  directed  to  the  sheriff  or  other 
proper  officer,  commanding  him  to  satisfy  the  judgment  upon  the 
body  or  the  property  of  the  defeated  party,  or  to  reinstate  the 
prevailing  party  in  the  possession  of  the  property  of  which  he 
has  been  deprived.  An  execution  issued  against  the  body  of 
the  defeated  party  is  called  a  capias  ad  satisfaciendum ;  and  is 
served  by  arresting  him  and  committing  him  to  prison,  there 
to  be  detained  tintil  he  is  discharged  by  due  course  of  law.  An 
execution  against  the  personal  property  of  the  tlefeated  })arty 
is  called  a  fieri  facias,  and  is  served  by  seizing  and  selling  so  much 
of  his  goods  and  chattels  as  may  be  needed  for  the  payment  of 


384  ELEMENTARY   LAW  §  347 

the  judgment  debt.  An  execution  issued  against  the  real  prop- 
erty must  conform  to  the  liabiUty  of  such  property  to  be  taken 
on  execution  under  the  local  law.  In  some  States  the  corporeal 
real  property  may  be  levied  on  under  a  fieri  facias,  and  sold  under 
a  subsequent  order  of  the  court  called  a  venditioni  exponas.  In 
other  States  the  corporeal  real  property  must  be  appraised,  and 
so  much  thereof  as  will  satisfy  the  judgment  must  be  deeded 
by  the  sheriff  to  the  prevailing  party.  In  still  other  States  the 
possession  of  the  corporeal  real  property  or  some  proportional 
part  thereof  must  be  delivered  to  the  prevailing  party,  to  be 
held  by  him  until  its  income  pays  the  debt.  The  execution  in 
an  action  of  ejectment,  when  the  plaintiff  obtains  judgment,  is 
called  a  habere  facias,  and  is  served  by  the  sheriff  by  ejecting  the 
defendant,  and  putting  the  plaintiff  into  peaceable  possession  of 
the  land.  An  execution  in  replevin,  on  a  judgment  for  the  de- 
fendant on  his  pleading  an  avowry  or  cognizance  with  a  demand 
for  the  restoration  of  the  property  to  him,  is  called  a  writ  of 
retorno  hahendo,  and  is  served  by  the  sheriff  by  taking  the  prop- 
erty from  the  plaintiff  who  replevied  it  and  delivering  it  to  the 
defendant.  In  an  action  of  detinue  the  execution  directs  the 
sheriff  to  put  the  plaintiff  in  possession  of  the  property,  and  where 
this  is  impossible  to  levy  for  its  value  on  the  property  of  the 
defendant.  An  execution  on  a  judgment  for  the  defendant  for 
his  costs  in  any  of  these  actions  is  enforced  against  the  property 
of  the  plaintiff  by  fieri  facias  if  his  property  is  personal,  and  by 
process  conformable  to  the  local  law  if  his  property  is  real. 
After  an  execution  has  been  served  according  to  its  precept  it 
must  be  returned  to  court  by  the  sheriff,  with  an  account  of  his 
doings  endorsed  thereon.  If  the  judgment  has  been  satisfied 
by  the  levy  the  proceedings  in  the  action  are  at  an  end.  If  it  is 
unsatisfied,  other  executions  may  be  issued  from  time  to  time, 
and  for  that  purpose  the  judgment  may  be  revived  by  scire 
facias  whenever  it  becomes  necessary  until  the  entire  debt  or 
property  has  been  recovered. 

Rem.  According  to  the  ancient  law  corporeal  property  alone 
could  be  taken  on  execution,  since  incorporeal  property  could 
not  be  seized  by  the  sheriff  and  delivered  to  the  creditor  or  to  a 
purchaser  on  the  execution  sale.  Under  our  modern  law  the 
species  of  property  subject  to  execution  is  designated  mainly 


§  348  COURTS   OF   EQUITY  385 

by  local  statutes.  Real  property,  whether  corporeal  or  incor- 
poreal, if  it  can  be  so  set  apart  from  other  property  as  to  be  of 
value  to  a  purchaser  or  the  execution  creditor,  and  is  not  exempt 
from  execution  under  the  Homestead  Acts  of  the  State,  is  gener- 
ally open  to  a  levy.  Corporeal  personal  property  of  all  kinds 
may  be  taken,  except  those  articles  which  are  exempted  by 
statute  as  being  essential  to  the  protection  of  industrial  or 
domestic  life.  Choses  in  action  may  be  reached,  if  capable  of 
legal  reduction  to  possession,  by  an  execution  based  upon  a  pre- 
vious garnishment.  In  fine,  the  law  now  ordinarily  subjects  all 
kinds  of  jjroperty  to  the  satisfaction  of  judgment  debts,  unless 
its  physical  character  or  public  policy  forbids. 

Read:  Andrews,  American  Law,  §  793; 
Stephen  on  Pleading,  §  130; 
Maxwell  on  Pleading  and  Practice,  §§  527-562; 
Foster's  First  Book  of  Practice,  pp.  377-382. 


SECTION    V 

OF    THE    COURTS    OF    EQUITY 

§  348.     Of  Equity:  CoTirts  of  Equity:  Equity  Maxims. 

Equity  signifies  equality  or  justice,  and  when  the  word  is  used 
in  general  works  on  jurisprudence  it  is  sometimes  defined  as  "the 
correction  of  that  wherein  the  law,  by  reason  of  its  universality,  is 
deficient."  In  the  system  of  the  Common  Law,  however,  it  de- 
notes certain  remedial  processes  by  which  relief  can  be  afforded 
in  cases  whose  peculiar  circumstances  place  them  beyond  the 
reach  of  the  ordinary  courts.  The  courts  of  common  latv,  adher- 
ing to  their  ancient  customs  and  refusing  to  take  jurisdiction  over 
causes  for  which  no  precedent  existed,  left  five  classes  of  private 
legal  controversies  entirely  without  redress.  These  were:  (1) 
Cases  requiring  a  preventive  remedy ;  (2)  Cases  involving  more 
than  two  antagonistic  parties ;  (3)  Cases  to  which  the  customary 
forms  of  common  law  actions  were  not  adapted;  (4)  Cases  in 
which  a  judgment  for  damages,  or  for  the  restoration  of  specific 
property,  afforded  no  adecjuate  relief;  (5)  Cases  in  which  the 
defendant  had  a  just  defence  but  under  the  current  rules  of  plead- 
ing and  procedure  was  unable  to  present  it.  In  these  cases  the 
sole  resort  of  the  suitor  was  to  the  king  in  person,  who  by  his 
chancellor  investigated  and  decided  the  controversy ;  thus  grad- 
ually establishing  a  new  tribunal  side   by  side  with  the   courts 

26 


386  ELEMENTARY  LAW  §  348 

of  common  law,  but  with  practically  unlimited  jurisdiction  and 
able  to  apply  its  remedies  to  every  species  of  private  injury.  Until 
the  reign  of  Richard  II  (a.  d.  1377-99)  the  authority  of  this 
tribunal  was  chiefly  spiritual ;  but  at  that  time  it  began  to  issue 
writs  of  subpoena,  summoning  the  parties  into  court  as  witnesses, 
and  then  detaining  them  until  they  complied  with  its  decrees. 
By  this  means  it  obtained  control  over  the  persons  of  the  parties, 
and  became  able  to  enforce  its  orders  under  penalty  of  perpet- 
ual imprisonment.  During  the  next  two  centuries  the  growing 
power  of  this  tribunal  aroused  the  apprehensions  of  the  courts 
of  common  law,  and  its  authority  was  often  called  in  question ; 
but  in  the  reign  of  James  I  (a.  d.  1616)  the  king  himself  set 
these  matters  at  rest  by  deciding  that  the  chancellor  could  grant 
relief  even  against  the  judgment  of  a  court  of  common  law.  Since 
that  date  equity  jurisdiction  has  rapidly  expanded.  In  this  coun- 
try it  is  sometimes  vested  in  the  courts  of  common  law,  some- 
times in  distinct  judicial  bodies.  Under  the  New  Procedure 
both  systems  are  combined,  and  legal  and  equitable  remedies 
may  be  sought  and  applied  in  the  same  action. 

Rem.  During  the  development  of  courts  of  equity  certain 
fundamental  principles  have  become  established  as  rules  for 
their  guidance  in  every  species  of  controversy.  These  are  called 
the  ''Equity  Maxims,"  and  are  as  follows:  (1)  Equity  will  pro- 
vide a  remedy  whenever  a  legal  right  requires  protection,  and 
other  courts  are  unable  to  afford  it ;  (2)  Equity  acts  in  view  of  the 
substance  of  a  transaction  rather  than  its  form ;  (3)  Equity  re- 
gards that  as  having  been  done  which  was  agreed  or  directed  to 
be  done;  (4)  Equity  interprets  the  conduct  of  parties  in  the 
light  of  their  obligations,  and  as  being  intended  to  fulfil  them ; 

(5)  Equity  acts  directly  upon  the  person,  compelling  action  or 
forbearance,  not  upon   the  subject-matter  of   the    controversy; 

(6)  Equity  redresses  wrongs  by  enforcing  rights,  not  by  award- 
ing compensation  for  their  infringement;  (7)  Equity  promotes 
equality  of  right  or  duty  between  parties  jointly  interested  or 
obliged ;  (8)  Equity  adopts  the  classifications  and  distinctions  of 
the  common  law  courts  in  reference  to  titles,  estates,  and  inter- 
ests in  property;  (9)  Equity  prefers  legal  titles  to  equitable 
titles,  when  the  legal  title  is  of  equal  justice  with  the  equitable; 
(10)  Equity  prefers  the  elder  of  two  conflicting  equitable  titles 
when  both  are  of  equal  justice;  (11)  Equity  requires  that  he 
who  invokes  its  aid  in  any  transaction  must  be  ready  to  perform, 
in  reference  to  that  transaction,  whatever  justice  may  demand; 


J  349  ACTIONS   IN  COURTS  OF  EQUITY  387 

(12)  Equity  will  refuse  its  aid  to  parties  who,  in  the  same 
private  transaction,  have  already  been  guilty  of  fraud  or  other 
wrong;  (13)  Equity  will  deny  relief  to  persons  who,  through 
wilful  laches  or  neglect,  have  slumbered  on  their  rights  until  it 
is  no  longer  possible  to  do  exact  justice  between  the  parties,  or 
until  innocent  third  persons  have  acquired  rights  which  would  be 
prejudiced  if  the  court  were  now  to  interfere ;  (14)  Equity  hav- 
ing once  assumed  jurisdiction  of  a  controversy,  on  any  equitable 
ground  whatever,  will  retain  it  and  administer  complete  justice 
upon  all  grounds  between  the  parties.  The  application  of  these 
maxims  to  the  infinitely  varied  questions  which  fall  within  the 
cognizance  of  courts  of  e(juity  enables  them,  in  most  cases,  to 
arrive  at  right  conclusions ;  and  the  numerous  special  doctrines 
derived  from  them  now  constitute  the  body  of  law  called  "equity 
jurisprudence,'^  which  is  as  definite  and  positive  a  system  of  rul'ss 
as  those  interpreted  and  applied  by  the  courts  of  common  law 

Read:  3  HI.  Com.,  pp.  46-55,  426-455; 

Barbour,  Rights  of  Persons  and  Property,  pp.  50-53; 

Andrews,  American  Law,  §§  804  a-812,  826-828; 

Clark,  Elementary  Law,  §§  35-37; 

Adams  on  Ecinity,  Introduction; 

Storj'  on  Equity  Jurisprudence,  §§  1-58; 

Willard  on  E<iuity,  pp.  33-49; 

Merwin  on  Equity  and  Equity  Pleading,  §§  1-28,  110-142; 

Fetter  on  Equity,  §§  1,  2,  7-20; 

Tiedeman  on  Equity,  §§  1-24,  472-475; 

Pomeroy  on  Equity,  §§  1-128,  359-431; 

Bispliam  on  Equity,  §§  1-15,  37-48,  583; 

Beach  on  Ecjuity,  §§  1-24; 

Beach  on  Pleading  and  Practice  in  Equity,  §§  1-10; 

Foster's  First  Book  of  Practice,  pp.  309-315. 

§  349.     Of  the  Sphere  of  Equity  Jurisdiction:  Injunctions. 

Three  classes  of  cases  recjuire  the  interference  of  a  court  of 
equity:  (1)  Those  which  involve  the  application  of  a  preventive 
remedy;  (2)  Those  where  the  parties  to  the  controversy  are 
more  than  two  in  number ;  (3)  Those  where  the  subject-matter  of 
the  controversy  is  either  wholly  or  partially  of  such  a  nature  that 
a  complete  and  adequate  remedy  cannot  be  obtained  in  any 
other  tribunal.  The  specific  preventive  remedy  employed  in 
courts  of  e(|uity  is  known  as  an  injunction.  An  injunction  is  a 
mandate  issuing  out  of  a  court  of  e(juity,  and  enjoining  the  re- 
spondent under  suitable  p(Mialties  to  perform,  or  to  refrain  from 
performing,  some  designated  action.  Injunctions  are  of  vari- 
ous species:    (a)  Prohibitorij  injunctions,  which  forbid  action; 


388  ELEMENTARY   LAW  §  349 

(6)  Mandatory  injunctions,  which  command  action ;  (c)  Tempo- 
rary injunctions,  which  preserve  matters  in  statu  quo  until  the 
controversy  can  be  finally  determined ;  (d)  Perpetual  injunctions, 
which  impose  permanent  duties  or  forbearances  on  the  respond- 
ent ;  (e)  Ex  parte  injunctions,  which  are  granted  on  the  applica- 
tion of  the  petitioner  without  a  formal  hearing  of  the  parties, 
and  in  some  extreme  emergencies  without  previous  notice  to  the 
respondent.  In  granting  an  injunction  the  court  may  require  the 
petitioner  to  give  a  bond  to  indemnify  the  respondent  against  un- 
just loss,  or  may  impose  any  other  terms  upon  the  parties  which 
equity  demands ;  and  except  in  the  case  of  a  perpetual  injunction 
may  at  any  time  modify  or  rescind  its  preventive  mandate.  An 
injunction  hinds  all  persons  to  whose  knowledge  it  may  come, 
though  they  may  not  yet  have  been  made  parties  to  the  suit. 

Rem.  The  tendency  of  courts  of  equity,  in  modern  times,  is 
to  grant  injunctions  in  all  cases  where  the  redress,  which  the 
petitioner  could  obtain  if  the  threatened  wrong  were  perpetrated, 
would  be  less  advantageous  to  him  than  the  immediate  appli- 
cation of  a  preventive  remedy.  In  pursuance  of  this  tendency 
injunctions  are  now  issued:  (1)  To  prevent  fraud  of  every  de- 
scription, whether  in  contracts,  conveyances,  htigations,  or  in 
the  exercise  of  family  rights;  (2)  To  prevent  irreparable  injury 
to  real  property  by  waste,  nuisance,  or  trespass,  or  to  personal 
property  by  the  infringement  of  patents,  copyrights,  or  trade- 
marks, or  by  the  destruction  or  conversion  of  irreplaceable  arti- 
cles like  heirlooms  or  original  works  of  art;  (3)  To  prevent 
injuries  to  health  and  comfort  from  impending  nuisances  offensive 
to  the  senses,  or  calculated  to  disturb  the  peace  or  security  of  the 
petitioner;  (4)  To  prevent  unlawful  interference  with  liberty  of 
contract  or  labor;  (5)  To  prevent  slander  or  libel  injurious  to 
property  or  commercial  interests ;  (6)  To  prevent  the  invasion  of 
family  rights,  as  by  forbidding  the  marriage  of  female  wards 
without  the  consent  of  their  guardians,  or  restraining  husbands 
from  abusing  their  wives,  or  parents  from  oppressing  their  chil- 
dren. In  short,  it  would  appear  that  there  is  no  limit,  beyond 
which  equity  cannot  go,  when  justice  demands  its  interposition 
either  because  the  threatened  wrong  would  be  irremediable,  or 
because  the  only  other  remedies  involve  such  protracted  or  ex- 
pensive litigation  as  to  seriously  impair  their  value. 

Read:  Andrews,  American  Law,  §§  813-815,  830,  846-850,  855,  866; 
Clark,  Elementary  Law,  §  247; 
Adams  on  Equity,  pp.  194-199,  206-219; 
Story  on  Equity  Jurisprudence,  §§  861-959  6; 


§  350  ACTIONS   IN  COURTS  OF  EQUITY  389 

Willard  on  Equity,  pp.  341-408; 

Merwin  on  Equity  and  Equity  Pleading,  §§  29-39,  780-847; 

Fetter  on  Equity,  §§  185-193; 

Tiedeman  on  Equity,  §§  478-491; 

Pomeroy  on  Equity,  §§  1337-1374; 

Bispham  on  Equity,  §§  399-405; 

Beach  on  Equity,  §§  638-780; 

Beach  on  Pleading  and  Practice  in  Equity,  §§  753-787; 

Daniell's  Chancery  Pleading  and  Practice,  pp.  1613-1697; 

Maxwell  on  Pleading  and  Practice,  §§  681-733; 

Foster's  First  Book  of  Practice,  pp.  357-362. 

§  350.     Of    the    Sphere    of    Equity    Jurisdiction:     Multipartite 
Controversies. 

A  cause  of  action  of  which  the  courts  of  common  law  would  take 
cognizance  if  the  controversy  were  confined  to  two  parties,  —  a 
plaintiff  and  defendant,  —  becomes  the  subject  of  equity  jurisdic- 
tion whenever  the  necessary  parties  are  more  than  two.  Instances 
where  this  condition  of  afl'airs  furnishes  the  sole  reason  for 
equity  interference  are  chiefly  found  in  actions  of  (1)  Account; 
(2)  Interpleader;  (3)  Contribution;  (4)  Bills  of  Peace.  An  action 
of  account  between  two  parties  may  be  brought  in  a  court  of 
common  law,  but  equity  alone  is  able  to  adjust  an  account  be- 
tween three  or  more  parties.  A  bill  of  interpleader  in  a  court  of 
equity  is  the  only  remedy  where  property  in  the  possession  of  one 
person  is  claimed  by  two  or  more  independent  parties,  between 
whom  the  possessor  is  unable  to  decide.  The  rights  of  a  single 
claimant  could  be  determined  in  an  action  of  replevin  or  assump- 
sit; but  any  number  of  claimants  can  be  brought  by  the  posses- 
sor into  a  court  of  equity,  and  be  there  compelled  to  plead 
among  themselves  and  submit  to  its  decision,  at  their  own  ex- 
pense or  that  of  the  disputed  property.  An  action  of  assumpsit 
for  contribution  may  be  brought  by  one  of  two  joint  obligors  who 
has  satisfied  the  entire  obligation,  in  ordt-r  to  recover  from  the 
other  his  proportionate  share;  but  if  the  obligation  jointly  binds 
three  or  more  parties,  the  suit  must  be  in  e<juity.  Where  several 
persons  hold  by  separate  titles  a  privil(>ge  which  they  enjoy  in 
common,  like  a  right  of  way  or  use  of  water,  and  their  enjoyment 
is  disturbed  by  one  wrongdoer,  each  can  sue  alone  at  law  for  the 
injury  caused  by  his  own  disturbance;  but  to  avoid  a  ninltiplieity 
of  suits,  and  because  the  s(>veral  wrongs  |)roceed  from  a  single 
source,  the  parties  may  all  unite  in  e(|nity  in  one  jjctition  for  re- 


390  ELEMENTARY  LAW  §  351 

lief,  called  for  that  reason  a  hill  of  peace,  and  in  the  name  of  all, 
or  in  the  name  of  one  on  behalf  of  all,  may  secure  the  protection 
of  their  various  rights. 

Rem.  In  these  four  cases  the  principal  if  not  the  only  ground 
of  equity  jurisdiction  is  the  multipartite  character  of  the  cause  of 
action,  out  of  which  the  controversy  has  originated,  which  in  all 
other  respects  would  be  a  proper  cause  of  action  in  the  courts  of 
common  law.  Where,  however,  the  cause  of  action  is  in  its  own 
nature  equitable  and,  no  matter  what  the  number  of  the  parties 
were,  would  come  within  the  jurisdiction  of  the  equity  courts, 
the  fact  that  three  or  more  parties  are  interested  in  its  determina- 
tion merely  constitutes  an  additional  and  not  a  qualifying  reason 
why  it  falls  within  the  cognizance  of  the  equity  courts,  —  as  in 
the  case  of  multipartite  mortgages  and  trusts. 

Read:  Andrews,  American  Law,  §§  833,  841,  842; 
Adams  on  Equity,  pp.  199-206,  220-228,  239-247; 
Story  on  Equity  Jurisprudence,  §§  441-529,  659-683,  800-851; 
Willard  on  Equity,  pp.  85-105,  313-327,  707-728; 
Merwn  on  Equity  and  Equity  Pleading,  §§  48-52,  576-598,  884- 

897; 
Fetter  on  Equity,  §§  6,  164-167,  201,  202; 
Tiedeman  on  Equity,  §§  511-519,  533-536,  566-574; 
Pomeroy  on  Equity,  §§  1319-1329,  1420,  1421; 
Bispham  on  Equity,  §§  479-486,  505-524; 
Beacli  on  Equity,  §§  838-854,  873-882; 
Daniell's  Chancery  Pleading  and  Practice,  pp.  1506-1575; 
Story  on  Equity  Pleadings,  §§  291-298; 
Maxwell  on  Pleading  and  Practice,  §§  734-744. 

{  351.  Of  the  Sphere  of  Equity  Jurisdiction;  Controversies  in 
which  Courts  of  Equity  alone  can  give  Complete  and 
Adequate  ReUef. 

Controversies  over  wliich  courts  of  equity  have  already  claimed 
jurisdiction  on  the  ground  that  they  alone  could  in  such  cases 
give  complete  and  adequate  relief  may  be  roughly  grouped  into  the 
following  classes  :  (1)  The  specific  performance  of  contracts ;  (2) 
The  rescission  of  contracts;  (3)  The  reformation  and  cancella- 
tion of  written  instruments;  (4)  The  amelioration  or  enforce- 
ment of  penalties  and  forfeitures;  (5)  The  management  and 
partition  of  joint  estates ;  (6)  The  administration  of  trust  estates ; 
(7)  The  adjustment  of  mortgages  and  liens ;  (8)  The  assignment 
of  choses  in  action ;  (9)  The  settlement  of  the  conflicting  claims 
of  bona  fide  purchasers;    (10)  The  election  between  alternate 


§  352  ACTIONS   IN  COURTS   OF  EQUITY  391 

rights  to  property;  (11)  The  determination  of  the  rights  of  joint 
obhgors;  (12)  The  regulation  of  the  conflicting  rights  of  credi- 
tors; (13)  The  protection  of  the  rights  of  married  women,  in- 
fants, and  insane  persons;  (14)  The  conduct  of  proceedings  in 
aid  of  suits  at  law;  (15)  The  enforcement  or  inhibition  of  judg- 
ments and  awards;    (16)  The  suppression  of  useless  litigation. 

Rem.  Controversies  whose  subject  matter  is,  either  in  whole 
or  in  part,  of  such  a  character  that  final  and  adequate  justice  can 
be  done  between  the  parties  only  by  a  court  of  equity  can  neither 
be  enumerated  nor  accurately  classified,  since  they  vary  with 
changing  conditions  and  increase  in  number  and  species  with 
the  advance  of  society.  Several  of  those  above  mentioned  are  of 
comparatively  recent  recognition,  but  these  suggest  no  limits  to 
its  future  evolution.  Whenever  and  wherever  a  legal  right  exists, 
for  whose  violation  no  adequate  redress  can  be  obtained  in  other 
courts,  the  sphere  of  equitable  remedies  will  extend,  and  its  au- 
thority will  be  ample  to  afford  the  requisite  relief.  It  is  difficult 
to  imagine  what  subject  can  be  beyond  the  powers  of  a  tribunal 
whose  control  over  the  parties  can  be  exercised,  if  necessary,  by 
their  perpetual  imprisonment,  and  in  whose  hands  the  sword  of 
justice  can  thwart  the  threatened  or  avenge  the  finished  wrong. 

Read:  Story  on  Equity  Jurisprudence,  §J5  59-440; 
Merwin  on  Equity  and  Equity  Pleading,  §§  54-62; 
Fetter  on  Equity,  §§  3-5,  21-23; 
Pomeroy  on  Equity,  §§  129-358,  801-974; 
Bispham  on  Equity.  §§  16-36,  174-260,  280-294; 
Beach  on  Equity,  §§  1090-1113. 

§  352.     Of  Equity  Jurisdiction  over  the  Specific  Performance  of 
Contracts. 

Courts  of  e(|uity  have  authority  to  compel  contracting  parties 
to  perform  their  contract  obligations,  in  cases  where  no  money 
damages  would  be  an  adequate  compensation  for  their  failure 
to  perform.  This  authority  extends  to  both  oral  and  written  con- 
tracts ;  and  will  be  exerted  even  in  aid  of  oral  contracts  which, 
under  the  Statute  of  Frauds,  should  have  been  reduced  to  writing, 
if  the  party  to  be  bound  thereby  hiis  fraudulently  prevented  such 
reduction,  or  has  recognized  the  existence  and  validity  of  the  con- 
tract by  partly  performing  it  or  by  receiving  its  benefits.  The 
contract  may  relate  to  the  possession  or  ownership  of  real  prop- 
erty or  of  irreplaceable  personal  property,  or  in  certain  cases  to 
a  temporary  personal  service.     It  must  be  valid  in  law,  just  and 


392  ELEMENTARY   LAW  §  353 

equitable  between  the  parties,  mutually  binding  upon  both,  and 
capable  of  being  carried  into  effect  at  the  present  time  in  pur- 
suance of  the  order  of  the  court ;  and  all  conditions  precedent  to 
the  right  of  the  petitioner  to  its  immediate  enforcement  against 
the  respondent  must  have  been  fulfilled. 

Rem.  A  court  of  equity  will  not  issue  an  order  which  is  mani- 
festly futile,  nor  undertake  to  enforce  a  duty  whose  execution 
would  require  its  perpetual  supervision.  Hence,  however  just 
may  be  the  claim  of  a  petitioner  that  a  certain  contract  obliga- 
tion should  have  been  fulfilled,  yet  if  its  performance  has  now 
become  impossible  a  court  of  equity  must  leave  the  injured 
party  to  his  remedy  for  damages  at  law.  So  where  the  contract 
calls  for  the  performance  of  a  personal  service  covering  a  consid- 
erable period  of  time,  like  a  contract  of  partnership  or  a  contract 
to  marry,  a  court  of  equity  cannot  stand  guard  over  the  parties  to 
compel  them  to  discharge  their  respective  daily  obligations,  but 
relegates  them  to  the  courts  of  law  for  such  relief  as  they  may 
there  be  able  to  obtain. 

Read:  Andrews,  American  Law,  §  837; 
Adams  on  Equity,  pp.  77-92 ; 
Story  on  Equity  Jurisprudence,  §§  712-799  b; 
Willard  on  Equity,  pp.  261-302,  309-312; 
Merwin  on  Equity  and  Equity  Pleading,  §§  63-76,  731-779; 
Fetter  on  Equity,  §§  176-184; 
Tiedeman  on  Equity,  §§  361-367,  492-504; 
Pomeroy  on  Equity,  §§  1400-1412; 
Bispham  on  Equity,  §§  361-398; 
Beacii  on  Equity,  §§  566-637. 

§  363.     Of  Equity  Jurisdiction  over  the  Rescission  of  Contracts. 

A  court  of  equity  also  has  authority  to  rescind  a  contract  which 
it  would  be  inequitable  to  enforce.  In  general,  a  contract  entered 
into  honestly  and  understandingly  by  both  parties  will  bind  them 
according  to  its  terms,  however  disadvantageous  to  one  or  the 
other  of  them  its  performance  may  be.  But  where  either  party 
has  practiced  any  fraud  upon  the  other ;  or  has  taken  advantage 
of  any  confidential  relationship  between  them ;  or  has  exercised 
undue  influence  over  the  other;  or  where  the  contract  itself  is 
contrary  to  public  policy;  or  where  both  parties  have  entered  into 
the  contract  under  a  mutual  mistake,  —  it  is  within  the  province 
of  a  court  of  equity  to  protect  the  just  rights  of  the  parties  by  de- 
creeing that  the  contract  shall  be  null  and  void. 


§  354  ACTIONS   IN  COURTS   OF   EQUITY  393 

Rem.  Although  every  contract  into  which  fraud  or  mistake 
enters  is  either  ip.io  facto  void,  or  is  voidable  at  the  option  of  the 
injured  party,  and  an  action  based  upon  it  can  therefore  be  suc- 
cessfully defended  in  a  court  of  law;  yet  as  all  apparently  valid 
outstanding  contract  obligations  are  always  a  menace  to  the 
liberty  and  property  rights  of  the  obligors,  while  the  evidence  on 
which  the  ability  to  prove  their  fraudulent  or  mistaken  character 
depends  is  in  most  cases  ephemeral ;  no  adequate  perpetual  pro- 
tection to  the  parties  bound  thereby  can  be  secured  except  by 
annulling  the  contract  itself  without  awaiting  the  institution  of  an 
action  to  enforce  it,  and  by  placing  on  the  records  of  the  court  of 
equity  permanent  and  conclusive  proof  that  its  obligations  are 
destroyed. 

Read:  Andrews,  American  Law,  §  837  a; 
Story  on  Equity  Jurisprudence,  §§  59-440; 
Willard  on  Equity,  pp.  51-84,  145-259; 

Merwin  on  Equity  and  Equity  Pleading,  §§  40-42,  54-62,  396-575; 
Fetter  on  Equity,  §§  75-103; 
Tiedeman  on  Equity,  §§  lOG-121,  175-240; 
Pomeroy  on  Equity,  §§  129-358,  801-974; 
Bispham  on  Equity,  §§  16-36,  174-260,  280-294; 
Beach  on  Equity,  §§  25-147. 

§  364.     Of  Equity  Jurisdiction  over  the  Reformation  and  Oancel- 
lation  of  Written  Instruments. 

The  correction  of  jiiistakcs  made  by  the  parties  in  the  lan- 
guage of  their  written  instruments  is  also  within  the  province 
of  the  courts  of  equity.  Courts  of  law  take  cognizance  of 
written  instruments  according  to  their  written  language  as 
interpreted  by  fixed  legal  rules,  whatever  may  have  been  the 
real  intention  of  the  parties;  and  do  not  permit  them  to  offer 
evidence  to  prove  that  through  error  or  mistake  the  language  fails 
to  present  their  actual  meaning.  Courts  of  equity,  however,  have 
authority  to  ascertain  and  carry  into  effect  the  exact  intention 
of  the  parties,  and  for  this  purpose  to  reform  the  instrument  by 
substituting  for  the  original  words  and  phrases  others  more 
precisely  expressing  their  desires.  Courts  of  equity  may  also 
cancel  instruments  apparently  creating  obligations,  whose  en- 
forcement would  be  contrary  to  justice,  either  because  the  instru- 
ment is  invalid,  or  was  obtained  by  fraud,  or  was  executed  under  a 
mistake  of  fact,  or  because  the  obligation  is  already  satisfied. 
Thus  the  holders  of  forged  documents,  or  of  voidable  contracts, 
or  of  invalid  deeds,  or  of  notes  or  checks  that  have  been  paid  but 


394  ELEMENTARY  LAW  §  355 

not  delivered  to  their  makers,  may  be  compelled  to  bring  them 
into  court  to  be  destroyed  or  surrendered  to  the  proper  claimant. 
But  if  the  instruments  are  void  upon  their  face  no  such  relief  is 
necessary. 

Rem.  To  warrant  a  court  of  equity  to  cancel  or  correct  an  in- 
strument, because  of  a  mistake  in  its  language  or  its  legal  effect, 
the  mistake  must  have  been  common  to  both  parties,  since  if  the 
instrument  as  it  stands  embodies  the  purpose  and  intention  of 
one  party  it  cannot  be  amended  in  the  interest  of  the  other  with- 
out imposing  upon  the  former  an  obligation  which  he  never  con- 
sented to  incur.  In  this  case  equity  cannot  interfere,  but  must 
leave  the  parties  to  the  operation  of  the  ordinary  rules  applied  by 
courts  of  law. 

Read:  Andrews,  American  Law,  §  838; 
Adams  on  Equity,  pp.  166-193; 
Story  on  Equity  Jurisprudence,  §§  694-711; 
Willard  on  Equity,  pp.  303-308; 
Merwin  on  Equity  and  Equity  Pleading,  §§  77-93; 
Fetter  on  Equity,  §§  194,  195; 
Tiedeman  on  Equity,  §§  506-508; 
Pomeroy  on  Equity,  §§  1375-1377; 
Bispham  on  Equity,  §§  466-478; 
Beach  on  Equity,  §§  538-555. 

§  355.     Of  Equity  Jurisdiction  over  the  Amelioration  or  Enforce- 
ment of  Penalties  and  Forfeitures. 

A  contract  for  the  performance  of  a  future  action  sometimes 
contains  an  express  stipulation  for  the  payment  of  a  specific  sum 
of  money  by  the  promisor  to  the  promisee  in  case  of  its  non- 
performance. This  sum  may  be  considered  either  as  a  penalty  or 
as  liquidated  damages.  Where  no  standard  exists  by  which  the 
proper  amount  of  damages,  to  be  awarded  for  the  non-perform- 
ance, could  be  measured  by  a  jury,  and  the  non-performance 
would  probably  occasion  damage  equal  to  the  amount  named  in 
the  contract,  the  sum  is  recognized  by  the  courts  as  liquidated 
damages  which  the  parties  have  adjusted  in  advance,  in  order  to 
avoid  the  difficulties  of  ascertaining  it  after  the  injury  has  oc- 
curred. In  other  cases  the  sum  is  usually  regarded  as  a  penalty. 
Both  courts  of  law  and  courts  of  equity  respect  an  agreement 
concerning  liquidated  damages,  and  leave  the  parties  to  the  rem- 
edy which  they  have  provided  for  themselves.  Courts  of  law  act 
in  the  same  manner  in  reference  to  penalties  and  enforce  the 


§  355  ACTIONS   IN  COURTS   OF  EQUITY  395 

agreement  to  the  same  extent.  But  courts  of  equity,  considering 
the  stipulation  for  a  penalty  merely  as  a  means  for  securing  the 
performance  of  the  contract,  or  the  payment  of  an  adequate  com- 
pensation in  case  of  non-performance,  relieve  the  promisor  from 
Uability  for  any  excess  over  a  proper  recompense  to  the  promisee. 
Forfeitures  annexed  to  contracts  or  conveyances,  especially  when 
intended  to  secure  the  fulfilment  of  stipulated  duties  within  speci- 
fied times,  are  in  like  manner  subject  to  relief  in  equity. 

Rem.  The  underlying  principle  expressed  in  this  form  of 
equitable  relief  is  that  justice  requires  that  compensation  should 
be  measured  by  the  actual  injury.  Hence,  where  the  amount  of  a 
prospective  injury  is  not  determined  by  previous  agreement, 
equity  requires  that  whenever  it  occurs  it  should  be  ascertained 
by  actual  investigation,  and  only  that  amount  should  be  recov- 
ered. In  many  contracts,  providing  for  the  performance  of  a  cer- 
tain duty  within  a  certain  time,  a  delay  in  the  performance  may 
occasion  no  loss  whatever,  or  a  loss  easily  compensated  by  a 
subsequent  performance  coupled  with  the  payment  of  a  recom- 
pense in  money.  In  such  contracts  a  stipulation  for  a  forfeiture 
in  case  of  non-performance  will  be  decreed  inoperative  in  ecjuity, 
if  the  failure  to  perform  has  resulted  either  from  accident  or  the 
conduct  of  the  promisee,  and  without  fault  of  the  promisor; 
and  the  promisor  will  be  permitted  to  perform  after  the  stipu- 
lated time  has  expired,  and  thus  prevent  the  forfeiture.  This  is 
what  is  meant  by  the  common  maxim  that  "in  equitij  time  is  not 
of  the  essence  of  a  contract,"  —  a  maxim  which  is  true  only  when 
applied  to  cases  of  the  character  above  described ;  for  time  is  of 
the  essence  of  the  contract,  even  in  equity,  whenever  it  is  ex- 
pressly made  so  by  the  terms  of  the  agreement  or  the  nature  of 
the  subject-matter,  or  where  the  rights  of  innocent  third  parties 
are  involved.  Common  examples  of  this  indulgence  obtainable 
in  equity  are  the  privileges  conceded  to  mortgagors  to  redeem 
their  property  by  paying  the  mortgage  debt  with  interest  after 
the  prescribed  pay-day ;  to  lessees  to  save  their  estates  by  paying 
or  tendering  their  rent  after  the  date  named  in  the  lease.  Over 
forfeiture  and  penalties  imposed  by  statutes  courts  of  equity  have 
no  jurisdiction. 

Read:  Story  on  Equity  Jurisprudence,  §§  1301-1326; 
Fetter  on  Equity,  §5  71-74; 
Tiedeman  on  Equity,  §J  2.5-37; 
Pomeroy  on  Equity,  §§  432^60; 
Beach  on  Equity,  §§  1013-1021. 


396  ELEMENTARY   LAW  §§  356,  357 

§  356.     Of  Equity  Jurisdiction  over  the  Management  and  Parti- 
tion of  Joint  Estates. 

The  jurisdiction  of  the  courts  of  equity  over  joint  estates  in 
real  property  arose  out  of  the  inabihty  of  a  court  of  law  to  force  the 
different  owners  to  disclose  their  titles,  and  to  sever  their  estates  by 
executing  reciprocal  conveyances  in  pursuance  of  its  decrees. 
These  purposes  the  authority  of  the  courts  of  equity  over  the 
persons  of  the  parties  enabled  them  to  accomplish.  Under  the 
same  authority  the  enjoyment  of  incorporeal  rights  in  land  may 
be  aparted  in  any  manner  calculated  to  conserve  the  interests  of 
all  the  owners,  and  secure  to  each  his  proportion  of  the  privilege. 
Over  the  use  and  division  of  joint  personal  property  courts  of 
equity  have  always  taken  jurisdiction,  on  the  ground  that  courts 
of  law  afford  no  remedy  to  the  co-owners  against  the  owner  who 
may  be  in  possession.  While  joint  property  of  any  kind  remains 
undivided  claims  by  one  owner  against  the  others  for  an  account 
of  profits,  or  for  contribution  toward  the  cost  of  necessary  re- 
pairs, and  other  mutual  obligations  growing  out  of  the  joint  own- 
ership, are  also  cognizable  in  equity. 

Rem.  This  wide  authority  of  equity  over  the  joint  enjoyment 
or  partition  of  common  property  has  been  extended  by  modern 
statutes  to  the  disposal  of  the  property  itself,  so  that  where  the 
property  cannot  be  divided  equally  a  court  of  equity  may  direct 
it  to  be  sold  and  the  proceeds  apportioned  among  the  co-owners, 
or  may  award  the  whole  to  one  co-owner  and  compel  him  to  pay 
the  others  for  their  shares. 

Read:  Andrews,  American  Law,  §§  852,  853,  856; 
Adams  on  Equity,  pp.  229-238,  248-206; 

Story  on  Equity  Jurisprudence,  §§  530-632,  646-658,  684-687; 
Willard  on  Equity,  pp.  693-705; 
Fetter  on  Equity,  §§  172-175; 
Tiedeman  on  Equity,  §§  521-525; 
Pomeroy  on  Equity,  §§  1378-1392; 
Bispham  on  Equity,  §§  487-504,  528-540; 
Beach  on  Equity,  §§  981-1007. 

5  357.     Of  Equity  Jurisdiction  over  the  Administration  of  Trust 

Estates. 

The  distinction  between  legal  and  ecjuitable  estates  in  real 
property,  which  arose  out  of  the  introduction  of  uses  to  evade  the 
Acts  of  Mortmain,  is  applied  to  personal  property  also,  and  equi- 


§  357  ACTIONS   IN  COURTS  OF  EQUITY  397 

table  estates  of  all  kinds,  under  the  name  of  "trusts,"  now  occupy 
one  of  the  most  important  places  among  the  subjects  of  equity 
jurisdiction.  A  trust  involves  an  obligation  resting  upon  one 
party,  called  the  trustee,  in  whom  the  legal  estate  in  the  property 
is  vested,  to  administer  the  property  for  the  benefit  of  some  other 
party,  called  the  cestui  que  trust.  W  hile  the  trustee  alone  can  sue 
and  be  sued  in  a  court  of  law,  the  cestui  que  trust  is  in  equity  re- 
garded as  the  true  owner  of  the  property;  and  in  order  to  pro- 
tect his  rights  the  courts  of  equity  assume  entire  control  of  the 
trust  estate,  appoint  and  remove  trustees,  compel  them  to  per- 
form their  duties,  and  require  them  to  account  to  the  cestui  que 
trust  for  the  benefits  derived  from  the  estate. 

Rem.  Trusts  are  divisible  on  different  grounds  into  various 
classes:  (1)  Private  Trusts  and  Public  Trusts;  (2)  Executed 
Trusts  and  Executory  Trusts ;  (3)  Active  Trusts  and  Passive 
Trusts;  (4)  Conventional  Trusts  and  Legal  Trusts.  A  private 
trust  is  one  created  for  the  benefit  of  individuals  or  families. 
Unless  it  arises  by  ojieration  of  law,  and  is  therefore  a  legal  trust, 
it  requires  a  settlor  who  creates  the  trust  out  of  his  own  legal  es- 
tate; a  trustee,  in  whom  the  legal  estate  is  vested  by  the  settlor 
for  the  benefit  of  the  cestui  que  trust;  and  a  definitely  ascer- 
tained and  designated  cestui  que  trust,  on  whom  the  benefit  may 
be  conferred  and  by  whom  the  obligations  of  the  trust  may  be 
enforced.  A  puhlic  trust,  called  sometimes  a  rjiaritable  use,  is 
one  created  for  the  benefit  of  the  sick,  poor,  or  ignorant  members 
of  the  community  at  large,  or  f(jr  the  maintenance  of  some  other 
useful  piil)lic  work.  A  public  trust  does  not  recjuire  the  specific 
designation  of  the  individual  beneficiaries,  nor  of  the  person  who 
shall  act  as  the  trustee.  If  the  creator  of  the  trust  defines  its  gen- 
eral character,  and  aj)propriates  to  it  certain  described  property, 
the  courts  of  equity  will  su])ply  the  rest  by  appointing  a  trustee 
and  directing  him  in  the  employment  of  the  property;  and  if  the 
method  of  eniploynient  |)res(Til)('(l  by  the  creator  of  th(>  trust  be- 
comes impracticabli'  tlu-y  will,  undi-r  tjie  power  conferred  vipon 
them  by  the  rif  prcs  doctrine,  change  the  method  and  accom- 
plish the  result  as  far  as  j)ossible.  In  several  of  our  American 
States  these  differences  between  public  and  private  trusts  have 
been  abolished  by  statute,  and  all  trusts  for  whatever  pur- 
poses must  possess  the  recjuisites  and  are  governed  l)v  the  rules 
applied  to  private  trusts.  An  crccutcd  trust  is  one  whose  purpose 
and  method  of  administration  are  fnlly  defined  by  the  settlor  at 
the  time  of  its  creation,  —  the  trusti'e  having  no  duty  but  to  fol- 
low its  directions.     An  e.xecutorii  trust  is  one  whose  precise  pur- 


398  EI,EMENTARY  LAW  §  357 

pose  or  method  is  left  to  the  discretion  of  the  trustee,  who  then  as 
nearly  as  he  can,  and  by  such  means  as  he  possesses,  must  carry 
out  its  general  intention.  An  active  trust  is  one  which  imposes 
certain  duties  upon  the  trustee  other  than  that  of  holding  the 
legal  estate  to  serve  the  equitable,  while  the  cestui  que  trust  has 
no  right  in  the  property  except  to  receive  its  designated  benefits 
as  they  accrue.  A  passive  trust  is  one  in  which  the  trustee  has 
performed  all  his  prescribed  administrative  duties  although  the 
legal  estate  still  resides  in  him,  while  the  cestui  que  trust  is  equi- 
tably the  real  and  only  actual  owner  of  the  property,  and  gener- 
ally has  a  right  to  have  the  legal  estate  immediately  transferred 
to  him.  A  conventional  trust  is  one  created  by  the  act  of  the  set- 
tlor, either  conveying  the  legal  estate  to  some  other  person  to  hold 
for  the  benefit  of  the  cestui  que  trust,  or  covenanting  that  he  will 
himself  stand  seised  of  the  legal  estate  for  the  same  purpose.  No 
special  form  of  words  is  necessary  for  the  creation  of  a  conven- 
tional trust,  provided  the  intent  clearly  appears ;  nor  is  a  writing 
required  unless  the  trust  created  is  of  such  a  nature  that  under 
the  Statute  of  Frauds  a  memorandum  signed  by  the  settlor  is 
prescribed.  Even  acts  alone  are  sometimes  sufficient,  as  where 
one  person  deposits  money  in  a  savings  bank  in  trust  for  another, 
retaining  the  bank-book  in  his  own  possession  without  the  knowl- 
edge of  the  beneficiary.  Any  species  of  property  may  be  granted 
in  a  conventional  trust,  and  for  any  object  which  is  not  illegal  or 
immoral;  and  any  person  may  create  such  a  trust  who  has  the 
legal  capacity  to  convey  the  property,  or  may  become  the  trustee 
who  has  the  legal  ability  to  receive  and  administer  a  trust  estate, 
or  may  become  the  cestui  que  trust  if  he  is  legally  qualified  to 
enjoy  its  benefits.  Moreover,  the  same  person  may  be  both  the 
settlor  and  the  trustee,  or  the  settlor  and  the  cestid  que  trust,  in 
the  absence  of  fraudulent  intent  and  prejudice  to  the  rights  of 
others.  A  legal  trust  is  one  created  by  operation  of  law  in  view 
of  the  relations  or  dealings  of  the  parties.  Legal  trusts  are  of 
two  kinds:  (1)  Resulting  trusts;  and  (2)  Constructive  trusts. 
A  resulting  trust  is  an  obligation  implied  by  law,  devolving  upon 
the  grantee  of  a  legal  estate  and  compelling  him  to  hold  the  prop- 
erty for  the  use  and  benefit  of  the  grantor  or  of  the  person  who 
procured  the  grant  to  be  made.  The  principal  occasions  on  which 
the  law  implies  this  obligation  are  the  following :  (a)  Where  the 
owner  of  property,  without  receiving  a  consideration,  conveys 
the  legal  estate  therein  to  another  person  upon  a  trust  which 
cannot  be  fulfilled,  or  which  does  not  exhaust  the  beneficial  in- 
terest in  the  property,  or  under  circumstances  which  clearly  indi- 
cate that  the  grantor  expected  to  receive  its  benefits  himself; 
(b)  Where  any  person  with  his  own  money  purchases  or  unites 
with  others  in  the  purchase  of  property,  and  the  conveyance  is 
taken  in  the  name  of  some  one  other  than  himself,  his  wife,  his 


§  358  ACTIONS    IN   COURTS   OF   EQUITY  399 

child,  or  a  near  relative  to  whom  he  owes  a  moral  duty  of  support 
and  to  whom,  therefore,  a  gift  of  the  property  might  be  intended. 
A  constructive  trust  is  an  obligation  implied  by  law,  devolving 
upon  one  who  has  obtained  the  legal  estate  in  property  by  acci- 
dent, mistake,  or  fraud,  and  whom  equity  compels  to  account 
to  the  real  owner  for  its  benefits,  and  in  certain  cases  to  convey 
the  legal  estate  to  him.  The  duties  of  a  trustee,  under  any  form 
of  trust  except  a  passive  trust,  are  to  take  the  property  into  his 
possession  and  manage  it  with  skill,  fidelity,  and  diligence  for 
the  promotion  of  the  object  of  the  trust. 

Read:  Andrews,  American  Law,  §§  817-824,  844; 
Walker,  American  Law-,  §§  169-172,  174; 
Pingrey,  Real  Property,  §§  1048-1101; 
Rice,  Real  Property,  §§  212-226; 
Warv^elle,  Real  Property,  pp.  119-125,  360-365; 
Boone,  Real  Property,  §§  159-171  b; 
Tiffany,  Real  Property,  §§  91-102; 
Adams  on  Equity,  pp.  26-76,  97-106; 
Story  on  Equity  Jurisprudence,  §§  960-982,  998-1003,  1058-1074  a, 

1124-1300; 
Willard  on  Equity,  pp.  409-615; 
Merwin  on  Equity  and  Equity  Pleading,  §§  143-395; 
Fetter  on  Equity;  §§  104-140; 
Tiedeman  on  Equity,  §§  252-330  w; 
Pomeroy  on  Equity,  §§  578-590,  976-1097; 
Bispham  on  Equity,  §§  49-148; 
Beach  on  Equity,  §§  148-168,  202-286. 


§  358.     Of  Equity  Jurisdiction  over  the  Adjustment  of  Mortgages 
and  Liens. 

In  whatever  light  a  mortgage  may  be  regarded  by  the  courts  of 
common  law  in  equity  it  is  considered  as  a  mere  lien  to  secure  an 
obligation,  and  the  claims  of  the  parties  against  one  another  and 
the  property  are  so  adjusted  as  to  fulfil  the  obligation  without 
imposing  an  unreasonable  burden  upon  either.  Thus  while 
awaiting  pay-day  equity  will  protect  the  property  against  waste 
by  its  possessor;  and  if  necessary  will  place  it  in  the  hands  of  a 
receiver  for  administration.  After  pay-day,  if  the  debt  remains 
unpaid,  equity  will  entertain  a  petition  from  the  mortgagee  for  a 
foreclosure  of  the  mortgage,  and  appropriate  the  property  to  the 
payment  of  the  debt.  In  States  whose  local  laws  permit  a  strict 
foreclosure  this  appropriation  may  be  made  by  decreeing  that  the 
title  of  the  mortgagee  to  the  property  shall  become  absolute  on 
a  certain  future  date  if  the  debt  is  not  then  paid.    In  other  States 


400  ELEMENTARY   LAW  §  358 

the  appropriation  consists  in  a  sale  of  the  property ;  the  payment 
of  the  debt,  interest,  and  costs  out  of  the  proceeds ;  and  the  de- 
hvery  of  the  surplus  to  the  mortgagor  or  other  parties  in  interest. 
In  some  States  the  law  provides  that  if  the  property  does  not  yield 
enough  to  satisfy  the  claim,  a  judgment  and  execution  may  be 
given  for  the  balance  due.  On  the  other  hand,  where  pay-day 
has  elapsed,  and  the  mortgagee  refuses  to  accept  the  debt  upon 
its  tender  to  him  by  the  mortgagor,  the  mortgagor  may  bring  a 
'petition  to  redeem,  upon  which  the  court  will  order  an  ac- 
counting between  the  parties,  and  the  discharge  of  the  mortgage 
lien  on  payment  of  the  balance  thus  ascertained.  Courts  of  ecjuity 
exercise  a  similar  authority  over  deeds  of  trust,  mortgages  with 
power  of  sale,  chattel-mortgages,  and  the  liens  of  vendors,  ven- 
dees, mechanics,  co-tenants,  and  all  other  incumbrancers,  — 
enforcing  their  obligations  and  protecting  all  parties  against  fraud 
and  oppression.  No  contemporary  agreement  between  the  par- 
ties can  defeat  this  jurisdiction,  for  a  transaction  which  is  "once 
a  mortgage  is  in  equity  always  a  mortgage,"  although  a  subse- 
quent contract  upon  a  new  consideration  may  supersede  the 
mortgage,  and  change  the  character  of  their  relations. 

Rem.  Courts  of  equity  first  assumed  jurisdiction  over  mort- 
gages in  order  to  protect  the  mortgagor  against  the  forfeiture  of 
his  right  to  redeem  the  property,  by  failing  to  pay  the  debt  at 
pay-day,  in  cases  where  the  failure  had  been  caused  by  inevitable 
accident  or  by  the  fraudulent  conduct  of  the  mortgagee.  Later, 
these  courts  gave  relief  in  all  cases  of  non-payment  on  pay-day, 
and  extended  the  time  for  payment  to  a  date  fixed  by  themselves, 
upon  the  application  of  either  party,  in  a  proceeding  to  foreclose 
or  redeem.  This  privilege  of  redeeming  after  pay-day  is  called 
the  mortgagor's  equity  of  redemptiori. 

Read:  Andrews,  American  Law,  §§  835,  851; 
Adams  on  Equity,  pp.  110-134; 
Story  on  Equity  Jurisprudence,  §§  1004-1035  c; 
Willard  on  Equity,  pp.  106,  107 ; 
Merwin  on  Equity  and  Equity  Pleading,  §§  640-718; 
Fetter  on  Equity,  §§  141-157; 
Tiedeman  on  Equity,  §§  384-470; 
Pomeroy  on  Equity,  §§  1179-1269; 
Bispham  on  Equity,  §§  149-161,  351-360; 
Beach  on  Equity,  §§  287-318,  394-520; 
Maxwell  on  Pleading  and  Practice,  §§  570-624. 


§§  35S,  360      ACTIONS    IN   COURTS   OF   EQUITY  401 

§  359.     Of  Equity  Jurisdiction  over  Assignments  of  Ohoses  in 
Action. 

The  as.signnieiit  of  choses  in  action,  and  of  future  contingent 
interests  in  property,  was  invalid  under  the  ancient  common  law, 
and  recourse  to  the  courts  of  etjuity  was  therefore  necessary  to 
protect  the  just  rights  of  such  jissignees.  Later  the  courts  of 
common  law  so  far  receded  from  their  former  doctrine  as  to  ad- 
mit the  assignability  of  contracts  concerning  property,  and  of 
rights  of  action  for  certain  injuries  to  property;  but  other  as- 
signments, unless  aided  by  local  statutes,  are  still  enforcible 
only  in  equity.  An  equitable  assignment,  like  an  assignment  at 
law,  must  clearly  designate  the  thing  to  be  assigned  and  purport 
to  transfer  it  to  the  assignee,  to  whom  also  the  fact  of  the  in- 
tended assignment  must  be  duly  communicated.  If  the  prop- 
erty assigned  is  in  the  hands  of  a  third  person,  or  is  a  debt  due 
from  him,  notice  to  him  is  essential  to  render  him  liable  to  the 
assignee ;  and  in  the  absence  of  such  notice,  and  of  actual  knowl- 
edge of  the  assignment,  he  may  deal  with  the  assignor  as  if  no 
assignment  had  been  made.  Whether  the  assignee  of  a  chose 
in  action  may  sue  the  obligors  at  law  in  his  own  name,  or  in  the 
name  of  the  assignor,  or  nmst  resort  to  equity,  is  determined 
by  local  statutes. 

Rem.  The  assignee  of  a  chose  in  action  takes  it  subject  to  all 
the  equities  subsisting  between  the  assignor  and  the  holder  of  the 
property  assigned,  unless  the  property  is  a  debt  evidenced  by  a 
negotiable  bill  or  note  whose  transfer  before  maturity,  in  the  or- 
dinary course  of  business,  vests  the  property  in  the  transferree 
free  from  all  equities  which  are  not  apparent  on  its  face  or  are 
implied  by  law. 

Read:  Story  on  Equity  Jurisprudence,  §§  1036-1057  b; 
Merwin  on  Equity  and  Equity  Pleading,  §§  94-109; 
Fetter  on  Equity,  §§  158-163; 
Tiedcman  on  Equity,  s^§  371-382; 
Pomeroy  on  Etiuity,  §§  591-676,  1270-1302; 
Bispham  on  Equity.  §§  162-173,  261-279; 
Beach  on  Equity,  §§  319-381. 

§  360.     Of   Equity   Jurisdiction   over   the    Conflicting   Claims    of 
Bona  Fide  Purchasers. 

A  bona  fide  purchaser  is  one  who  in  good  faith,  and  without 
notice  of  antagonistic  claims,  has  paid  valuable  consideration  for 

20 


402  ELEMENTARY  LAW  §  361 

an  article  of  property.  When  two  or  more  bona  fide  purchasers 
claim  the  same  property  against  each  other,  as  may  sometimes 
happen  through  the  mistake  or  fraud  of  the  vendor,  only  a  court 
of  equity  can  determine  whose  title  shall  prevail,  since  all  the 
titles  are  equally  good  at  law.  The  principles  applied  to  such  a 
case  are  these:  (1)  The  property  will  be  awarded  to  that  pur- 
chaser who  has  the  superior  equity,  —  that  is,  to  the  one  who 
in  justice  has  the  best  right  to  it,  —  namely,  the  right  of  the  more 
diligent  above  the  right  of  the  less  diligent,  or  the  right  of  the 
person  misled  over  that  of  his  misleader ;  (2)  If  the  equities  are 
equal,  and  one  of  the  purchasers  had  acquired  the  legal  title,  the 
property  will  remain  in  him ;  (3)  If  the  equities  are  equal,  and 
neither  has  acquired  a  legal  title,  the  one  whose  equitable  right 
was  first  obtained  prevails.  Having  determined  these  questions 
the  court  decrees  such  transfers  and  releases  as  may  be  neces- 
sary to  extinguish  the  conflicting  claims,  and  quiet  the  title  of  the 
prevailing  purchaser. 

Rem.  Notice  is  knowledge,  either  actually  possessed  or  im- 
puted by  law.  The  law  imputes  to  every  person  of  normal  ca- 
pacity the  knowledge  of  every  fact  of  which  it  was  his  duty  to  in- 
form himself,  and  which  he  might  have  ascertained  by  reason- 
able inquiry ;  and  also  of  every  fact  appearing  on  a  public  record 
which  is  by  law  made  constructive  notice  to  all  persons  subse- 
quently becoming  interested  in  the  matters  stated  in  the  record. 
A  purchaser  having  such  knowledge,  actual  or  imputed,  of  antag- 
onistic claims  to  the  property  at  the  time  he  pays  the  purchase 
money,  cannot  be  a  bona  fide  purchaser  as  against  the  parties  by 
whom  these  claims  were  made;  but  must  take  his  title  subject 
to  them  as  they  may  be  afterwards  interpreted  and  sustained  by 
the  courts. 

Read:  Adams  on  Equity,  pp.  135-165; 

Merwin  on  Equity  and  Equity  Pleading,  §§  898-914; 

Fetter  on  Equity,  §§  52-70; 

Tiedeman  on  Equity,  §§  40-102; 

Pomeroy  on  Equity,  §§  677-800,  1127-1178; 

Bispham  on  Equity,  §§  307-325; 

Beach  on  Equity,  §§  382-393,  521-537. 

§  361.     Of  Equity  Jurisdiction  over  the  Election  between  Alter- 
nate Rights  to  Property. 

Cases  sometimes  occur  in  which  alternate  rights  of  property  are 
presented  to  a  person,  between  which  he  is  compelled  to  elect ; 


f 


§  361  ACTIONS   IN  COURTS  OF  EQUITY  403 

and,  having  made  his  election,  he  is  obHged  to  surrender  to  other 
persons  all  his  claims  to  the  property  rights  which  he  thereby 
rejects.  Over  all  such  eases  courts  of  equity  exercise  whatever 
authority  the  circumstances  demand;  compelling  the  parties  to 
make  their  election,  render  accounts,  execute  instruments,  and 
surrender  property,  until  their  legal  relations  are  finally  ad- 
justed, and  each  one  is  secured  in  the  enjoyment  of  his  rights. 

Rem.  Among  the  cases  sometimes  requiring  this  interference 
of  *^he  courts  of  equity  are  the  following:  (1)  Where  one  person, 
by  deed  or  will,  gives  to  another  person  certain  property  and  by 
the  same  instrument  provides  that  other  property,  already  be- 
longing to  the  proposed  donee,  shall  henceforth  belong  to  some 
third  person,  —  thereby  obliging  the  donee  to  elect  whether  he 
will  accept  the  gift  and  surrender  his  own  property,  or  will  retain 
his  own  property  and  refuse  the  gift;  (2)  Where  a  husband 
devises  or  becjueaths  property  to  his  wife  in  lieu  of  dower,  and 
after  his  death  she  is  required  to  choose  between  her  legal  rights 
as  his  widow  and  the  provision  made  for  her  in  the  will ;  (3) 
Where  a  debtor  makes  a  valuable  gift  to  his  creditor  as  an  ofi'set 
to  the  debt,  and  tiie  creditor  is  compelled  to  decide  whether  he 
will  receive  the  gift  as  payment  or  reject  the  gift  and  insist  upon 
his  claim ;  (4)  Wiiere  a  testator  makes  in  his  will  a  provision  for 
his  child,  and  subsecjuently  to  the  execution  of  the  will  gives 
directly  and  conijiletely  to  the  child  other  valuable  property,  and 
after  his  death  a  controversy  arises  whether  the  gift  was  in  addi- 
tion to  the  testamentary  provision,  or  was  an  advancement  be- 
tween which  and  the  testamentary  provision  the  child  must  now 
elect ;  (5)  Where  a  j)arcnt  dies  intestate,  having  given  in  his 
lifetime  to  any  one  of  his  children  an  advancement  of  less  value 
than  the  child's  proj)ortionate  sliare  of  his  intestate  estate  would 
be,  and  the  child  is  driven  to  his  election  whether  he  will  keep  the 
advancement  as  his  share,  or  put  it  into  hotchpoi  with  the  whole 
estate  and  take  advantage  of  its  eciual  distribution ;  (G)  Where 
the  owner  of  property  by  his  contract,  deed,  or  will  converts  its 
legal  character  from  real  to  personal,  or  from  personal  to  real, 
in  order  more  effectually  to  carry  out  his  general  intention, 
and  it  becomes  necessary  to  regard  it  sometimes  and  for  some 
purposes  as  real,  and  at  other  times  and  for  other  j)urposes  as 
personal,  and  in  its  alternating  character  to  appropriate  it  as  he 
has  directed. 

Read:  Adams  on  Equity,  pp.  92-97; 

Story  oil  Iviiiity  Jurisprudence,  §§  1075-1123  a; 

Fetter  on  Equity,  §§  24-.31 ; 

Tiedemau  on  Etjuity,  §§  12.3-174,  317-359; 


404  ELEMENTARY  LAW  §§  362,  363 

Pomeroy  on  Equity,  §§  461-577; 
Bispham  on  Equity,  §§  295-306; 
Beach  on  Equity,  §§  1033-1089. 


§  362.     Of  Equity  Jurisdiction  over  the  Relations  of  Joint  Obli- 
gors: Exoneration:  Contribution:  Subrogation. 

When  several  persons  lie  under  a  joint  ohligation  their  recip- 
rocal relations  are  often  such  as  to  require  the  interference  of  a 
court  of  equity  in  order  to  enforce  their  respective  rights  against 
one  another.  Thus  where  sureties  for  a  debtor  are  apprehensive 
of  a  suit  against  themselves  for  the  amount,  they  may  summon 
the  principal  into  a  court  of  equity,  and  compel  him  to  exonerate 
them  by  paying  off  the  debt.  Where  one  obligor  has  satisfied  the 
entire  obligation  and  seeks  for  contribution  from  the  others,  apart 
from  the  fact  that  the  number  of  the  obligors  may  compel  him  to 
resort  to  equity,  an  equal  distribution  of  the  burden  may  be  unat- 
tainable by  any  process  which  the  courts  of  law  can  employ,  and 
equity  alone  be  able  to  give  liim  adequate  relief.  Where  sureties 
are  obliged  to  pay  a  debt  they  are  subrogated  to  all  the  rights  of 
the  creditor  against  the  debtor,  and  are  entitled  to  an  assignment 
of  the  claim  with  its  collateral  securities. 

Rem.  The  subrogation  of  a  debt  to  the  surety  who  has  paid 
it  involves  the  transfer  to  him  of  all  mortgages,  liens,  or  other 
muniments  by  which  the  debt  was  secured,  and  these  he  can 
enforce  in  equity  as  if  he  were  the  original  creditor. 

Read:  Andrews,  American  Law,  §  836; 

Adams  on  Equity,  pp.  106-109,  267-271; 

Willard  on  Equity,  pp.  107-127; 

Merwin  on  Equity  and  Equity  Pleading,  §§  599-639; 

Fetter  on  Equity,  §§  168-170; 

Tiedeman  on  Equity,  §§  527-531; 

Pomeroy  on  Equity,  §§  1416-1419; 

Bispham  on  Equity,  §§  326-339; 

Beach  on  Equity,  §§  797-837. 

§  363.     Of   Eqmty  Jurisdiction   over   the   Conflicting   Rights   of 
Creditors:  Receivers:  Marshalling  Assets. 

Where  the  property  of  a  debtor  which  is  liable  for  his  debts  is 
so  situated  that  it  cannot  be  taken  for  that  purpose  by  legal  pro- 
cess, a  court  of  equity  may  assume  over  it  such  control  as  to 
secure  its  preservation  from  waste  or  unlawful  appropriation,  and 


§  363  ACTIONS    IN   COURTS   OF  EQUITY  405 

make  a  proper  distribution  of  it  among  the  rightful  claimants. 
One  method  of  accomplisliing  tliis  object  is  to  place  the  property 
in  the  hands  of  a  receiver.  A  receiver  is  an  officer  of  a  court  of 
equity,  and  acts  under  its  supervision.  Pursuant  to  the  order  of 
the  court  he  takes  possession  of  the  property;  ascertains  the 
amount  of  the  different  claims ;  liquidates  them  from  the  proceeds 
of  the  property,  and  returns  the  surplus  to  the  debtor.  Another 
method,  applicable  to  cases  where  two  or  more  debts  are  secured 
by  a  pledge  of  the  same  property,  and  one  of  the  creditors  has  an 
additional  security,  is  that  of  marshalling  the  assets;  which  con- 
sists in  compelling  the  doubly  secured  creditor  to  exhaust  his  ad- 
ditional security  before  resorting  to  that  which  he  holds  together 
with  the  others,  in  order  that  as  much  as  possible  shall  be  left  for 
the  satisfaction  of  the  other  claims. 

Rem.  Receiverships  are  now  frequently  employed  for  the 
winding  up  of  partnerships,  corporations,  and  co-tenancies ;  for 
the  settlement  of  the  affairs  of  infants  and  lunatics  who  have  no 
guardians ;  for  tiie  protection  of  mortgaged  property  from  waste ; 
for  the  preservation  of  testate  estates  when  the  executor  is  in- 
competent ;  for  the  appropriation  of  such  property  of  judgment 
debtors  as  cannot  be  reached  by  execution  ;  for  the  rescue  of  trust 
property  which  is  being  abused  by  the  trustee ;  for  the  manage- 
ment of  the  property  of  a  husband  who  refuses  to  obey  the  order 
of  a  court  directing  him  to  apply  its  income  to  the  support  of  his 
separated  wife ;  and  for  cases  in  general  where  no  other  judicial 
proceeding  seems  adequate  to  the  emergency.  A  common  exam- 
ple of  marshalling  the  assets  is  that  of  two  mortgages  on  the  same 
piece  of  land  to  two  different  mortgagees,  —  the  earlier  of  which 
mortgages  covers  another  piece  of  land.  Here,  though  the  ear- 
lier mortgage  debt  must  be  fully  satisfied  before  any  of  the  prop- 
erty can  be  appropriated  to  the  payment  of  the  later  debt,  yet 
equity  will  conijiel  the  earlier  creditor  to  resort  first  to  the  land 
which  is  covered  by  his  mortgage  alone,  and  to  hold  the  other 
land  only  for  the  payment  of  the  residue. 
Read:  Andrews,  American  Law,  §  865; 

Adams  on  Equity,  pp.  271-277; 

Story  on  Eiiuity  Jurisprudence,  §§  633-645,  1430-1444; 

Willard  on  Equity,  ])p.  337-339,  and  ch.  xiii ; 

Merwin  on  E(iuity  and  ICquity  Pleading,  §§  1002-1010; 

Fetter  on  E<iuity',  §§  171,  203,  204; 

Tiedeman  on  E(iuity,  §,§  532,  577-588; 

Pomeroy  on  Equity,  §§  1330-1336.  1414; 

Bispham  on  Equity,  §§  339-350.  57()-580; 

Beach  on  Equity,  §§  781-790,  931-980; 


406  ELEMENTARY  LAW  §  364 

Beach  on  Pleading  and  Practice  in  Equity,  §§  717-752; 
Daniell's  Chancery  Pleading  and  Practice,  pp.  1715-1769; 
Maxwell  on  Pleading  and  Practice,  §§  832-868. 

§  364.     Of  Equity  Jurisdiction  over  the  Rights  of  Married  Women, 
Infants,  and  Lunatics. 

The  strictness  with  which  the  courts  of  common  law  adhered 
to  the  doctrine  that  the  personahty  of  a  wife  is  merged  in  that  of 
her  husband  obhged  the  courts  of  equity,  in  the  interest  of  justice 
and  humanity,  to  take  some  notice  of  her  separate  existence. 
Thus  where  it  became  necessary  for  her  to  separate  from  her  hus- 
band on  account  of  his  cruelty,  and  either  voluntarily  or  by  com- 
pulsion he  had  made  provision  for  her  separate  maintenance,  equity 
assumed  authority  to  superintend  this  provision  and  enforce  her 
rights.  Again,  where  property  was  granted  or  devised  to  her  for 
her  sole  and  separate  use  apart  from  any  control  of  her  husband, 
although  this  gave  her  no  standing  in  a  court  of  law  yet  equity, 
unwilling  to  leave  her  without  some  method  of  vindicating  her 
rights,  regarded  her  as  the  real  owner  of  the  property  and  recog- 
nized her  acts  and  contracts  in  reference  to  it  as  if  she  were  a 
fevie  sole.  This  attitude  of  the  courts  of  equity  toward  the  prop- 
erty rights  of  married  women  has  now  extended  to  her  personal 
rights,  and  in  some  instances  to  her  family  rights  also,  on  the 
ground  that  where  the  law  concedes  the  existence  of  these  rights 
and  provides  no  method  for  their  enforcement,  the  courts  of 
equity  have  jurisdiction  to  afford  her  adecjuate  relief. 

Rem.  The  courts  of  equity  in  their  capacity  of  agencies 
through  which  the  sovereign,  as  parens  patriae,  exercised  his 
supervision  over  infants,  idiots,  lunatics,  and  other  incapables, 
originally  had  immediate  jurisdiction  over  these  abnormal 
persons  also.  In  modern  practice,  this  jurisdiction  is  generally 
lodged  in  probate  courts,  and  other  minor  tribunals  having 
special  equity  powers,  with  an  appellate  jurisdiction  in  the  higher 
equity  courts. 

Read:  Andrews,  American  Law,  §  816; 

Adams  on  Equity,  pp.  278-298; 

Story  on  Equity  Jurisprudence,  §§  983-997,  1327-1429; 

Willard  on  Equity,  pp.  617-692; 

Merwin  on  Equity  and  Equity  Pleading,  §§  868-883; 

Tiedeman  on  Equity,  §§  244-249,  331-345; 

Pomeroy  on  Equity,  §§  1098-1126,  1303-1314; 

Bispham  on  Equity,  §§  541-555; 

Beach  on  Equity,  §§  169-201,  1022-1032. 


§  365  ACTIONS   IN  COURTS  OF  EQUITY  407 

§  365.  Of  Equity  Jurisdiction  over  Proceedings  in  Aid  of  Suits 
at  Law :  Discovery :  Perpetuation  of  Testimony  :  De 
Bene  Esse  :  Ne  Exeat. 

The  personal  control  which  courts  of  equity  obtain  over  the 
parties  to  an  equity  proceeding  enables  them  to  promote,  in  many 
ways,  the  pursuit  of  judicial  remedies  in  the  courts  of  common 
law.  Thus  where  a  plaintiff,  who  desires  to  institute  an  action, 
cannot  otherwise  ascertain  what  persons  should  be  made  defend- 
ants he  may  file  in  a  court  of  equity  a  hill  of  discovery,  praying 
that  the  persons  named  in  the  bill  be  cited  into  court  to  answer 
under  oath  to  certain  interrogatories  contained  in  the  bill.  The 
same  proceeding  may  be  employed  during  the  progress  of  a  suit, 
whenever  either  party  requires  information  or  access  to  documents 
which  are  in  the  possession  of  the  other.  Where  any  person  ap- 
prehends that  at  some  time  in  the  future  he  may  be  obliged  to 
bring  an  action  which  he  cannot  yet  lawfully  commence,  and  that 
witnesses  who  are  now  available  may  then  be  dead  or  out  of  reach 
of  process,  or  that  documents  now  existing  and  accessible  may 
then  be  destroyed,  he  can  bring  in  equity  a  bill  to  perpetuate  tes- 
tiviontl,  pra}ing  that  the  evidence  may  be  taken  at  once  in  some 
proper  manner,  and  be  preserved  among  the  records  of  the 
court.  Where,  after  a  suit  has  been  commenced,  either  party 
has  reason  to  fear  that  at  the  time  of  trial  certain  witnesses  may  be 
unable  to  attend  and  testify,  a  bill  in  equity  prajing  the  court  to 
take  their  testimony  de  bene  esse,  or  conditionally  upon  their  ab- 
sence, and  preserve  it  in  the  records  will  afford  the  necessary  re- 
lief. Where  it  is  important  that  any  party  should  remain  within 
the  State,  in  order  that  an  expected  decree  of  the  court  may  be 
enforced  against  him,  a  writ  of  ne  exeat  may  issue  out  of  equity 
upon  which  he  may  be  arrested,  and  held  in  custody  until  he 
gives  sufficient  bail  to  abide  the  decree.  This  writ  is  available  in 
aid  of  causes  pending  in  any  court,  particularly  in  actions  of  ac- 
count, in  proceedings  for  divorce  and  aUmony,  and  in  other  suits 
in  reference  to  which  some  act  or  disclosure  of  the  party  may  be 
required. 

Rem.  The  recent  modification  of  the  rules  of  evidence  in 
courts  of  law  allowing  int(>restcd  parties  to  testify  in  court  in 
their  own  cases,  and  to  be  called  as  witnesses  by  adverse  parties, 
and  compelling  them  to  produce  documents  when  so  directed  by 


408  ELEMENTARY   LAW  §  366 

a  subpoena  duces  tecum,  renders  it  possible  to  obtain  many  of  the 
benefits  above  described  without  the  aid  of  an  additional  pro- 
ceeding in  the  nature  of  a  bill  of  discovery.  Testimony  de  bene 
esse  may  also  in  many  cases  be  secured  by  an  ordinary  deposi- 
tion, taken  in  the  regular  course  of  a  suit  at  law. 

Read:  Andrews,  American  Law,  §§  843,  858; 
Adams  on  Equity,  pp.  1-25; 

Story  on  Equity  Jurisprudence,  §§  689-691,  1464-1516; 
Merwin  on  Equity  and  Equity  Pleading,  §§  43-47,  848-866; 
Fetter  on  Equity,  §§  197-200; 
Tiedeman  on  Equity,  §§  539-542,  549-562; 
Bispham  on  Equity,  §§  556-567,  573,  581,  582; 
Beach  on  Equity,  §§  855-872,  1008-1012; 
Beach  on  Pleading  and  Practice  in  Equity,  §§  607-626; 
Daniell's  Chancery  Pleading  and  Practice,  pp.  480-487,  1698-1714, 

1817-1839; 
Story  on  Equity  Pleading,  §§  299-325; 
Maxwell  on  Pleading  and  Practice,  §§  87-100. 

§  366.  Of  Equity  Jurisdiction  over  Proceedings  in  Aid  of  Judg- 
ments and  Awards :  Creditors'  Bills  :  Removal  of  Cloud 
on  Title  :  New  Trials,  etc. 

Where  an  execution  debtor  has  so  concealed  or  fraudulently 
conveyed  his  property  that  the  levy  of  an  execution,  issued  on  a 
judgment  against  him,  has  become  impossible:  equity  will  aid 
the  enforcement  of  the  judgment  by  permitting  the  execution 
creditor  to  file  a  creditors'  bill  against  the  debtor  and  the  fraudu- 
lent grantee,  compelling  them  to  disclose  their  transactions  and 
restore  the  property  so  that  it  may  be  taken  on  the  execution.  If 
the  property  be  realty,  and  has  already  been  levied  on  and  sold 
under  the  execution  notwithstanding  its  fraudulent  conveyance, 
equity  can  remove  the  cloud  upon  the  title  of  the  execution  pur- 
chaser, by  obliging  the  fraudulent  grantee  or  holder  to  give  him  a 
deed  of  release.  The  judgment  of  a  court  of  common  law  cannot 
be  formally  vacated  and  set  aside  by  a  court  of  equity  unless  it 
was  obtained  by  fraud,  however  unjust  may  be  its  effect  upon  the 
defeated  party;  but  a  court  of  equity  may  grant  an  injunction 
against  the  victor,  forbidding  him  to  enforce  the  judgment,  and 
in  this  way  fully  protect  the  party's  rights.  Where  the  defeated 
party  to  an  action,  subsequently  to  the  trial  and  after  the  ver- 
dict can  no  longer  be  reversed  in  the  court  of  law,  discovers  new 
evidence  which  if  it  had  been  offered  at  the  trial  would  probably 
have  produced  a  different  result,  a  court  of  equity  can  entertain  a 


§  307  ACTIONS   IN  COURTS  OF  EQUITY  409 

petition  for  a  new  trial;  and  if  upon  the  hearing  it  appears  that 
the  former  verdict  was  erroneous,  and  tliat  the  defeated  party 
was  guilty  of  no  negHgence  in  not  then  adducing  the  evidence  in 
question,  the  court  of  equity  may  compel  the  victor  to  submit  to 
a  new  trial,  under  penalty  of  an  injunction  against  the  judgment 
already  rendered. 

Rem.  An  award  of  arbitrators  cannot  be  enforced  by  execution 
unless  it  is  incorporated  in  the  judgment  of  a  court.  If  it  directs 
the  payment  of  a  sum  of  money,  an  action  at  law  may  be  brought 
to  recover  it ;  but  if  it  requires  some  act  to  be  performed,  such  as 
the  removal  of  a  nuisance  or  the  conveyance  of  land,  the  assist- 
ance of  a  court  of  equity  may  be  necessary  to  enforce  it.  A  court 
of  ecjuity  can  also  set  aside  an  aivard  whenever  misbehavior  or 
fraud  in  the  parties,  or  corruption,  partiality,  or  illegal  conduct 
on  the  part  of  the  arbitrators,  can  be  estabhshed. 

Read:  Andrews,  American  Law,  §  834; 

Story  on  Equity  Jurisprudence,  §§  1450-1463; 

Merwin  on  Eqviity  and  Equity  Pleading,  §§  719-730; 

Fetter  on  Equity,  §  196; 

Pomeroy  on  E<iuity,  §§  1395-1399,  1415; 

Bispham  on  Ecjuity,  §§  525-527,  568-572,  574,  575; 

Beach  on  Ecpiity,  §§  556-565,  883-930; 

Maxwell  on  Pleading  and  Practice,  §§  480-494. 


§  367.     Of  Equity  Jurisdiction  over  the  Suppression  of  Useless 
Litigation. 

A  court  of  equity  has  power  to  terminate  controversies  and 
prevent  useless  litigation  by  a  formal  decree  between  the  parties, 
establishing  in  detail  their  respective  rights.  This  power  is  exer- 
cised chiefly  in  reference  to  titles  to  real  property.  Where  the 
right  of  the  true  owner  is  unquestionable,  and  adverse  claimants 
nevertheless  are  urging  rights  based  upon  ouster  or  imperfect 
titles  or  satisfied  incumbrances,  and  thus  vex  him  with  the 
continual  fear  of  future  litigation,  a  court  of  equity  upon  a  bill 
quia  timet,  praying  that  the  title  may  be  qiiirtcd,  may  put  an  end 
to  all  risk  of  further  controversy  by  decreeing  that  the  true  title 
is  in  the  petitioner,  and  compelling  all  the  other  claimants  to  give 
him  releases,  or  to  confess  his  title  on  the  record  of  the  court,  and 
to  surrender  papers,  and  to  do  whatever  other  acts  may  be  re- 
quired to  divest  themselves  of  any  color  of  right,  whose  assertion 
could  hereafter  subject  him  to  annoyance. 


410  ELEMENTARY   LAW  §  368 

Rem.  In  addition  to  all  the  powers  hereinbefore  described 
every  court  of  equity  of  general  jurisdiction  has  authority  to  meet 
the  exigencies  of  any  peculiar  situation,  for  which  no  precedent 
has  yet  been  established,  by  administering  what  is  known  as 
general  equitable  relief.  Hence  it  is  customary  for  petitioners  in 
equity,  in  addition  to  their  prayers  for  such  redress  or  protection 
as  they  deem  themselves  entitled  to  receive,  to  pray  also  for  such 
general  relief  as  the  subsequent  developments  of  the  case  may 
show  to  be  advisable. 

Read:  Andrews,  American  Law,  §§  840,  842; 

Story  on  Equity  Jurisprudence,  §§  825-851,  1445-1449; 
Willard  on  Equity,  pp.  328-337; 
Tiedeman  on  Equity,  §§  543-546; 
Pomeroy  on  Equity,  §§  1393,  1394; 
Boone,  Real  Property,  §§  512-534, 


§  368.     Of  Bills  in  Equity. 

The  methods  by  which  a  court  of  equity  applies  its  various 
remedies  are  simple  and  flexible  in  the  highest  possible  degree. 
The  first  step  in  the  proceedings  is  the  filing  of  the  hill,  or  peti- 
tion, with  the  clerk  of  the  court.  Bills  in  equity  are  of  two  classes : 
(1)  Original  Bills;  and  (2)  Bills  not  Original.  An  original  hill 
relates  to  matters  not  already  in  litigation  in  equity  between  the 
parties,  and  is  the  bill  by  which  the  proceedings  are  commenced. 
A  hill  not  original  relates  to  some  matter  already  wholly  or  par- 
tially before  the  court ;  and  is  designed  to  add  to,  or  continue,  or 
in  some  other  manner  affect  the  proceedings  instituted  by  an 
original  bill.  Kn  original  hill  contains :  (a)  The  title  of  the  court 
and  the  name  of  the  petitioner ;  (6)  A  narration  of  the  facts  which 
warrant  the  court  in  affording  the  relief  desired,  setting  them  forth 
with  clearness  and  certainty  and  in  ordinary  language ;  (c)  The 
interrogatories  and  demand  for  a  discovery,  when  this  is  required 
by  the  petitioner;  {d)  A  prayer  for  the  specific  relief  sought  by 
the  bill ;  (e)  The  prayer  for  such  general  equitable  relief  as  the 
court  may  find  to  be  appropriate.  The  rules  of  equity  pleading 
permit  a  joinder  of  causes  of  action  in  the  same  bill,  but  do  not 
authorize  the  union  of  matters  which  are  perfectly  distinct  and 
unconnected,  or  which  require  remedies  of  an  independent  char- 
acter against  several  diiferent  defendants.  An  improper  joinder 
of  causes  renders  the  bill  mvltifarious ;  and  if  the  court  regards 
it  as  tending  to  confusion,  and  likely  to  produce  difficulty  at  the 


§  369  PROCEDURE   IN  COURTS  OF  EQUITY  411 

trial,  it  may  order  the  petitioner  to  reduce  the  number  of  his 
claims  and  thereby  simplify  the  bill. 

Rem.  When  a  bill  not  original  alleges  facts  relating  to  the 
cause  of  action  which  have  transpired  since  the  commencement  of 
the  suit,  or  which  bring  in  new  parties,  it  is  called  a  supplemental 
bill,  and  is  in  the  nature  of  an  amendment  to  the  original  bill.  A 
bill  not  original  whose  purpose  is  to  obtain  the  reinstatement  of  a 
suit  which  has  been  abated  by  the  death  of  one  of  the  parties,  and 
to  procure  the  appearance  of  his  legal  representatives,  is  known  as 
a  bill  of  revivor.  A  bill  filed  by  the  respondent  disclosing  some 
new  feature  of  the  controversy,  and  making  it  the  basis  of  a  coun- 
terclaim for  relief,  is  called  a  cross-bill. 

Read:  Andrews,  American  Law,  §§  860,  863; 
Adams  on  Equity,  pp.  299-311,  402-416; 
Merwin  on  Equity  and  Equity  Pleading,  §§  915-939; 
Story  on  Equity  Pleading,  §§  1-48,  239-290,  32G-402; 
Beach  on  Pleading  and  Practice  in  Equity,   §§  81-165,  421-448, 

481-515; 
Daniell's  Chancery  Pleading  and  Practice,  pp.  305-427,  480-487, 

1506-1575; 
Ma.xwell  on  Pleading  and  Practice,  §§  640-649,  667,  669,  671; 
Foster's  First  Book  of  Practice,  pp.  315-328,  344,  345  351-353. 

§  369.     Of  the  Parties  to  a  Bill  in  Equity. 

All  persons,  natural  or  artificial,  whose  interests  can  be  af- 
fected by  the  proposed  decree  of  the  court  are  necessary  parties  to 
a  bill  in  equity,  and  until  all  such  persons  are  in  some  way  made 
participants  in  the  litigation  the  court  cannot  proceed.  Those 
who  would  naturally  be  co-petitioners,  but  refuse  to  be  joined  as 
such,  may  be  made  respondents ;  and  if  after  the  bill  is  filed  it 
appears  that  some  have  been  omitteil  they  may  be  brought  in  by 
amendment,  and  until  they  are  legally  notified  and  have  an  op- 
portunity to  apj)ear  the  suit  will  be  suspended.  A  misjoinder  of 
parties  is  cured  by  dismissing  the  bill  as  against  the  superfluous 
persons. 

Rem.  Parties  in  equity  must  sue  and  be  sued  in  their  own 
names,  since  the  decn'e  binds  the  persons,  ajid  tiiose  who  are  to 
be  affected  by  it  must  be  actually  or  legally  before  the  court,  and 
be  subject  to  its  orders. 

Read:  Andrews,  .\merican  Law,  §§  861,  862; 
Adams  on  Equity,  pp.  312-32.3; 
Merwin  on  Ecpiity  and  I"(|uity  Pleading,  §§  944-958; 


412  ELEMENTARY   LAW  §§  370,  371 

Story  on  Equity  Pleading,  §§  49-238; 
Beach  on  Pleading  and  Practice  in  Equity,  §§  40-80; 
Daniell's  Chancery  Pleading  and  Practice,  pp.  1-304; 
Foster's  First  Book  of  Practice,  pp.  328,  329; 
Bliss  on  Code  Pleading,  §§  72-81,  96-111  a. 

§  370.     Of  the  Process  in  Equity:  Appearance. 

The  process  in  a  court  of  equity  is  a  subpoena  or  citation,  which 
regularly  issues  from  the  court  upon  the  filing  of  the  bill,  and 
directs  the  persons  named  as  respondents  to  appear  on  the  proper 
return-day,  and  show  cause,  if  any  they  have,  why  the  prayer  of 
the  petition  should  not  be  granted. .  This  process  is  served  by  the 
sheriff  or  other  officer  by  reading,  or  by  copy,  or  by  publication, 
according  to  the  local  law.  If  necessary  parties  cannot  be  reached 
by  process,  and  do  not  voluntarily  appear,  the  case  cannot  pro- 
ceed unless  the  action  is  m  rem;  then,  after  such  notice  as  it  is 
possible  to  give,  the  court  may  act  upon  the  res,  protecting  the 
rights  of  absent  parties  by  such  methods  as  are  practically 
available.  An  appearance  in  equity  is  usually  made  in  person  or 
by  a  solicitor,  and  upon  entering  his  appearance  the  respondent 
must  disclaim,  or  demur,  or  plead,  or  answer,  as  the  exigency  of 
his  case  demands. 

Rem.  Where  a  respondent  who  is  served  with  process  fails  to 
appear  he  may  be  brought  in  on  a  capias,  if  his  answer  is  impor- 
tant to  the  petitioner,  as  it  may  be  in  bills  for  a  discovery  or  an 
account ;  otherwise  the  bill  may  be  taken  pro  confesso  for  the 
default  in  appearance,  and  the  court  may  conduct  the  trial  and 
render  a  decree  without  him. 

Read:  Andrews,  American  Law,  §  644; 
Adams  on  Equity,  pp.  324-330; 
Merwin  on  Equity  and  Equity  Pleading,  §  959; 
Beach  on  Pleading  and  Practice  in  Equity,  §§  11-39,  166-190,  2-11- 

223; 
Daniell's  Chancery  Pleading  and  Practice,  pp.  428-479,  488-516, 

533-541 ; 
Foster's  First  Book  of  Practice,  pp.  329-332. 

§  371.     Of  the  Pleadings  in  Equity :  Disclaimer  :  Demurrer  :  Plea. 

A  disclaimer  in  equity  is  a  pleading  in  which  the  respondent  dis- 
avows all  interest  in  the  subject-matter  of  the  controversy,  and 
prays  that  as  to  himself  the  bill  may  be  dismissed.  This  disavowal 
must  be  universal  and  uiujualified,  or  the  petitioner  is  not  bound 


§  371  PROCEDURE   IN   COURTS   OF   EQUITY  413 

to  accept  it,  hut  may  demand  a  further  answer.  If  he  does  ac- 
cept it  the  decree  follows  the  facts  as  proved  by  the  petitioner, 
and  admitted  by  the  respondent.  A  demurrer  in  equity  is  a  plead- 
ing in  which  the  respondent  points  out  some  defect  in  the  bill  as 
a  reason  why  he  should  not  be  compelled  to  answer  further  to  its 
allegations.  This  defect  must  be  apparent  on  the  face  of  the  bill, 
and  may  consist  either  in  a  want  of  jurisdiction  in  the  court,  or  the 
inca[)acity  of  the  parties  to  sue  and  be  sued,  or  the  absence  of 
necessary  averments  from  the  bill  itself.  If  this  demurrer  is  sus- 
tained the  petitioner  may  amend  his  bill  and  thus  cure,  if  pos- 
sible, the  defects  therein.  If  the  demurrer  is  overruled  the 
respondent  may  plead  or  answer  according  to  the  nature  of  his 
further  defences.  A  plea  in  equitij  is  a  special  pleading  in  which 
the  respondent  urges  some  particular  defence,  and  thus  reduces 
the  issue  to  a  single  point.  Such  particular  defences  are  a  want 
of  jurisdiction  in  the  court,  the  incapacity  of  the  parties,  or  some 
statute  or  record  or  other  matter  of  fact  which  of  itself  defeats  the 
claim  of  the  petitioner.  If  this  plea,  upon  replication  filed  and 
issue  joined,  is  sustained  by  sufficient  proof,  the  petiticmer  may 
amend  his  bill,  but  if  no  amendment  is  possible  the  judgment  on 
the  plea  will  be  a  bar  to  his  recovery  on  so  much  of  the  matter 
alleged  in  the  bill  as  was  put  in  issue  by  the  plea.  If  the  plea 
is  overruled  the  respondent  must  answer  over  or  a  decree  will 
be  rendered  against  him. 

Rem.  The  matters  covered  by  the  pleadings  in  equity  resem- 
ble in  substance  those  raised  by  the  various  defences  in  actions 
at  law,  but  differ  from  them  in  the  form  and  order  of  their  presen- 
tation. Thus,  as  will  be  noticed,  a  plea  to  tlie  jurisdiction  in  pro- 
ceedings at  law  is  represented  in  e((uity  pleading  by  a  denmrrer 
where  the  defect  is  apparent  on  the  record,  and  by  a  plea  when 
the  defect  nnist  be  made  evident  by  proof.  A  plea  in  abatement 
at  law  embraces  the  matter  whicli  in  e(|uity  is  urged  either  under 
a  demurrer  or  a  special  plea,  while  a  demurrer  in  equity  also  is 
used  for  the  same  purpose  as  a  demurrer  at  law.  A  plea  in  equity 
sometimes  corresponds  to  a  plea  to  the  jurisdiction  or  a  plea  in 
abatement,  and  sometimes  to  a  traverse  or  special  issue  at  law. 
The  other  purposes  of  the  pleadings  at  law  are  met  in  equity  by 
the  answer. 

Read:  Andrews,  American  Law,  §§  859,  864; 
Adams  on  Ecjuity,  pp.  3.31-343; 
Merwin  on  Equity  and  Equity  Pleading,  §§  961-980,  988; 


414  ELEMENTARY   LAW  §  372 

Story  on  Equity  Pleading,  §§  433-844; 
Beach  on  Pleading  and  Practice  in  Equity,  §§  224-330; 
Daniell's  Chancery  Pleading  and  Practice,  pp.  542-710; 
Maxwell  on  Pleading  and  Practice,  §§  650-652,  657-661; 
Foster's  First  Book  of  Practice,  pp.  333-339. 


§  372.     Of  the  Pleadings  in  Equity:   Answer:    Replication. 

An  answer  in  equity  is  a  denial  or  a  confession  and  avoidance 
of  all  the  material  allegations  of  the  bill.  In  it  the  respondent  sets 
forth  all  those  defences  to  the  action  on  which  he  intends  to  rely, 
except  such  as  are  proper  subjects  for  a  plea  or  demurrer;  and 
only  those  defences  which  are  contained  in  the  answer  will  be 
considered  by  the  court.  Any  number  of  defences  may  be  joined 
in  the  same  answer  if  they  are  consistent  with  one  another,  as 
they  must  be  if  all  are  true;  and  each  defence  must  then  be 
stated  distinctly  and  affirmatively,  and  with  such  particularity 
that  the  petitioner  may  know  precisely  what  he  has  to  meet.  The 
respondent  is  concluded  by  his  answer,  and  cannot  depart  from 
it  unless  he  first  amends  it  by  leave  of  the  court.  While  an  an- 
swer may  aver  new  matter,  by  way  of  confession  and  avoidance, 
it  cannot  make  such  new  matter  the  basis  of  a  claim  for  relief,  — 
this  being  the  proper  function  of  a  cross-bill.  Respondents  who 
are  jointly  interested  should  answer  jointly;  those  severally 
interested  may  answer  severally.  Where  the  bill  contains  inter- 
rogatories, to  which  an  answer  is  demanded  under  oath,  the  an- 
swer must  specifically  meet  the  interrogatories  and  be  sworn  to 
by  the  respondent.  Upon  the  filing  of  the  answer  the  petitioner 
may  amend  his  hill,  or  may  present  a  replication  to  which  the 
respondent  may  rejoin  by  a  new  pleading  or  by  amending  his  an- 
swer; and  thus  the  pleadings  may  advance  until  they  reach  an 
issue  on  which  a  trial  can  be  had.  In  modern  practice  the  plead- 
ings are  usually  perfected,  and  an  issue  formed,  by  amendments 
to  the  bill  and  answer. 

Rem.  An  insufficient  answer  may  be  excepted  to  by  the  peti- 
tioner, and  if  the  exception  is  sustained  a  further  answer  will  be 
ordered  by  the  court.  The  respondent  may  demur  to  one  part 
of  the  bill,  plead  to  another  part,  and  answer  the  remainder; 
but  cannot  demur,  plead,  and  answer  to  the  entire  bill  at  once, 
especially  if  the  answer  contains  all  the  objections  which  are 
urged  by  the  demurrer  and  the  plea.    Should  he  do  this,  however, 


§  373  PROCEDURE   IN  COURTS  OF  EQUITY  415 

the  petitioner  may  move  to  strike  out  the  superfluous  pleadings, 
or  compel  the  respondent  to  elect  between  them.  The  pleadings 
in  equity,  at  all  times  before  final  decree,  are  subject  to  further 
corrections  by  the  court,  upon  motion  of  either  party,  in  order 
that  the  real  points  in  issue  may  be  decided  and  embodied  in 
the   decree. 

Read:  Andrews,  American  Law,  §  864; 
Adams  on  Equity,  pp.  343-361; 
Merwin  on  Equity  and  Ecjuity  Pleading,  §§  981-986; 
Story  on  Equity  Pleading,  §§  345-906; 
Beach  on  Pleading  and  Practice  in  Equity,  §§  331-420,  471-480, 

553-606; 
Daniell's  Chancery  Pleading  and  Practice,  pp.  711-789,  828-835, 

1587-1612; 
Maxwell  on  Pleading  and  Practice,  §§  653-656,  662-665; 
Foster's  First  Book  of  Practice,  pp.  339-344. 


§  373.     Of  the  Trial  in  Courts  of  Equity. 

In  courts  of  ecjuity  all  issues  of  fact,  as  well  as  issues  of  law, 
may  be  heard  and  determined  by  the  judge  alone.  Various  meth- 
ods of  investigating  facts  may  be  employed.  The  judge  may 
hear  the  testimony  of  the  witnesses  himself,  or  it  may  be  taken 
in  writing  before  masters  in  chancery,  or  in  the  form  of  depositions 
and  presented  to  the  court.  In  questions  of  peculiar  difficulty  the 
judge  may  frame  an  issue  of  fact,  —  called  a  "feigned  isffue,"  — 
and  order  the  parties  to  submit  it  to  a  jury  in  a  court  of  law  by  a 
suit  brought  for  that  purpose;  and  when  the  verdict  of  the  jury 
is  rendered  the  judge  may  accept  and  follow  it  or  not,  as  to  him 
seems  reasonable  and  just.  When  the  facts  are  all  before  the 
judge  the  case  is  closed  by  the  arguments  of  counsel,  or  briefs 
may  be  presented  and  the  oral  argument  be  waived. 

Rem.  The  rules  of  evidence  in  equity  are  substantially  the 
same  as  those  prescribed  in  courts  of  law,  except  in  reference  to 
the  admission  of  oral  testimony  to  ex])lain,  rebut,  or  correct  a 
written  instrument.  In  cases  involving  questions  of  fraud  or  mis- 
take courts  of  efjuity  permit  the  introduction  of  such  testimony 
to  whatever  extent  the  justice  of  the  case  requires. 

Read  :  Adams  on  Equity,  pp.  362-373 ; 

Merwin  on  Equity  and  Equity  Pleading,  §§  991-1001,  1011,  1012; 
Beach  on  Pleading  and  Practice  in  E(|uity,  §§  516-552,  627-716; 
Daniell's  Chancery  Pleading  and  Practice,  pp.  836-9S5,  1071-1147; 
Maxwell  on  Pleading  and  Practice,  §§  639,  666,  668,  870-904; 
Foster's  First  Book  of  Practice,  pp.  344-349. 


416  ELEMENTARY   LAW  §  374 

§  374.     Of  the  Decree  in  Courts  of  Equity. 

The  judgment  of  a  court  of  equity  is  known  as  a  decree.  De« 
crees  in  equity  are  of  three  classes:  (1)  Decrees  'pro  confesso; 
(2)  Interlocutory  decrees ;  and  (3)  Final  decrees.  A  decree  pro 
confesso  is  a  decree  granted  against  the  respondent  on  his  failure 
to  appear,  or  to  plead,  or  to  answer,  according  to  the  order  of  the 
court.  It  assumes  the  allegations  of  the  bill  to  be  true,  and  until 
rescinded  is  as  binding  as  any  final  decree ;  but  it  may  be  revoked 
during  the  same  term  of  the  court,  on  sufficient  cause  shown,  and 
the  respondent  permitted  to  appear  or  plead.  If  not  revoked 
during  that  term  it  becomes  absolute,  and  then  cannot  be  re- 
versed except  by  a  bill  of  review,  or  on  a  petition  to  rescind  it  on 
the  ground  of  fraud.  An  interlocutory  decree  is  a  preliminary 
decree  in  favor  of  the  petitioner  upon  the  issues  created  by  the 
bill  and  answer,  and  refers  the  cause  to  a  master  in  chancery 
or  some  other  tribunal  for  the  settlement  of  questions  of  detail, 
such  as  the  computing  of  accounts  or  damages,  or  the  investi- 
gation of  a  title  and  the  removal  of  incumbrances.  Upon  the 
report  of  the  master,  and  its  approval  by  the  court,  the  final 
decree  is  rendered.  A  final  decree  is  one  which  terminates  the 
litigation,  and  awards  to  the  respective  parties  whatever  equity 
may  demand.  The  final  decree  in  all  cases  must  be  based  upon 
and  correspond  with  the  allegations  of  the  bill,  and  as  the  facts 
established  by  the  evidence  give  form  to  the  decree  the  bill 
may  be  amended  after  the  evidence  has  been  introduced,  so  as 
to  lay  a  proper  foundation  for  the  decree. 

Rem.  When  a  final  decree  is  rendered  in  favor  of  the  re- 
spondent the  bill  is  dismissed,  so  far  as  he  is  concerned,  unless  he 
has  filed  a  cross-bill  and  has  prevailed  on  the  issues  thereby 
created.  When  a  final  decree  is  granted  in  favor  of  the  petitioner, 
or  of  the  respondent  on  a  cross-bill,  it  directs  the  adverse  party, 
under  a  suitable  penalty,  to  do  or  not  to  do  the  acts  specified 
therein. 

Read  :  Andrews,  American  Law,  §  866 ; 
Adams  on  Equity,  pp.  374-395 ; 

Merwin  on  Equity  and  Equity  Pleading,  §§  995,  1013-1016; 
Beach  on  Pleading  and  Practice  in  Equity,  §§  191-210,  449-470, 

788-830; 
Daniell's  Chancery  Pleading  and  Practice,  pp.  517-532,  790-827, 

986-1031; 
Foster's  First  Book  of  Practice,  pp.  349-351. 


§§  375,  376      PROCEDURE   IN  COURTS   OF  EQUITY         417 

§  375.     Of  Rehearing:  Bill  of  Review. 

At  any  time  between  the  interlocutory  and  the  final  decrees  the 
court  may  order  a  rehearing  for  the  purpose  of  admitting  new 
evidence,  or  introducing  additional  defences,  or  on  any  other 
sufficient  grounds.  After  final  decree  a  bill  of  review  may  be 
filed,  without  leave  of  the  court,  for  errors  of  law  apparent  on 
the  record ;  and,  by  leave  of  the  court,  for  errors  of  fact  disclosed 
by  the  discovery  of  new  evidence.  When  employed  to  correct 
errors  of  law  a  bill  of  review  is  like  a  writ  of  error,  and  is  governed 
by  the  same  general  rules.  When  employed  to  correct  errors  of 
fact,  and  for  that  purpose  to  introduce  new  testimony,  it  resem- 
bles ail  application  for  a  new  trial.  If  a  bill  of  review  is  sus- 
tained the  former  decree  is  reopened,  and  a  new  hearing  and 
judgment  are  granted. 

Rem.  The  practice  in  this  country  sometimes  allows  a  rehear- 
ing, after  final  decree,  during  the  same  or  the  next  term  of  the 
court;  but  when  the  period  for  a  rehearing  once  expires  a  final 
decree  can  be  annulled  only  on  an  appeal  or  by  a  bill  of  review. 

Read  :  Andrews,  American  Law,  §  839 ; 
Adams  on  Equity,  pp.  396-401,  416-420; 

Merwin  on  Equity  and  Equity  Pleading,  §§  940-943,  1019,  1020; 
Story  on  Equity  Pleadings,  §§  403-425; 
Beach  on  Pleading  and  Practice  in  Equity,  §§  831-884; 
Daniell's  Chancery  Pleading  and  Practice,  pp.   1459-1505,   1575- 

1586; 
Maxwell  on  Pleading  and  Practice,  §§  670,  954-971; 
Foster's  First  Book  of  Practice,  pp.  354-357. 

S  376.     Of  the  Execution  in  Courts  of  Equity. 

Final  process  in  ecjuity  runs  only  against  the  person,  and  an 
execution  consequently  takes  the  form  of  an  attachment  of  the 
body  of  the  party  who  neglects  or  refuses  to  comply  with  the 
decree.  This  execution  issues  upon  the  motion  of  the  prevailing 
party,  fortified  by  affidavits  setting  up  the  other  party's  re- 
fusal or  neglect,  on  which  the  other  party  has  a  right  to  be  heard ; 
and  if  the  court  upon  the  hearing  finds  that  he  has  been  guilty  of 
contempt,  by  wilfully  disobeying  its  orders,  it  may  impose  upon 
him  a  fine,  or  cause  him  to  be  imprisoned  until  he  does  obey. 

Rem.  In  courts  of  common  law  a  judgment  usually  carries 
with  it  the  obligation  to  pay  costs  to  the  prevaiUng  party,  the 

27 


418  ELEMENTARY   LAW  §  377 

amount  of  which  is  fixed  by  the  local  law.  In  courts  of  equity  the 
prevaiUng  party  has  generally  no  right  to  costs,  but  costs  are  in 
the  discretion  of  the  court  which  may  deny  them  altogether,  or 
award  them  to  either  party,  or  divide  them  between  the  parties 
as  may  seem  just  and  reasonable.  Where  a  decree  imposes  costs, 
or  any  other  obligation  on  a  party  with  which  he  is  unable  to 
comply,  he  may  purge  himself  of  the  apparent  contempt  by 
proving  his  inability,  and  submitting  to  such  other  conditions  as 
the  court  may  prescribe. 

Read:  Merwin  on  Equity  and  Equity  Pleading,  §§  1017,  1018; 
Story  on  Equity  Pleadings,  §§  426-432; 
Beach  on  Pleading  and  Practice  in  Equity,  §§  885-1044; 
Darnell's  Chancery  Pleading  and  Practice,  pp.  1032-1070, 1160-1365. 


SECTION   VI 

OF    THE    COURTS    OF    ADMIRALTY 

§  377.     Of  Maritime  Law. 

Maritime  latv  is  the  law  governing  maritime  affairs,  or  those 
affairs  which  pertain  to  commerce  upon  navigable  waters. 
Navigable  waters,  in  modern  American  law,  include  the  high 
seas,  and  all  those  tidal  and  non-tidal  rivers,  lakes,  and  water- 
ways, upon  which  passengers  or  merchandise  can  be  trans- 
ported in  vessels  between  two  or  more  independent  States. 
Maritime  law  is  the  oldest  of  all  systems  of  law  which  are  now 
in  force,  having  been  developed  from  the  customs  of  primitive 
navigators,  and  having  descended  to  us  through  the  Phoenician 
Greek,  Roman,  Continental,  and  English  laws  of  the  sea. 
Its  American  form  is  found  in  the  Acts  of  Congress,  and  the 
decisions  of  the  Admiralty  Courts  of  the  United  States,  and 
their  appellate  tribunals. 

Rem.  The  necessity  for  a  special  system  of  laws  regulating 
maritime  affairs  arises  from  two  facts:  (1)  That  since  no 
individual  State  can  exercise  territorial  jurisdiction  over  the 
high  seas,  or  other  waters  outside  of  its  own  boundaries,  any 
system  of  law  which  controls  maritime  affairs  must  proceed 
from  the  concurrent  action  of  all  the  States  whose  vessels  navi- 
gate the  highways  of  commerce ;  (2)  That  since,  in  many  cases, 
the  defendants  in  maritime  controversies  are  personally  beyond 
the  reach  of  process  issuing  from  any  court  to  which  the  plaintiff 
can  have  access,  his  right  to  an  efficient  remedy  requires  that  he 


§  378  COURTS   OF  ADMIRALTY  419 

should  be  allowed  to  bring  his  action  directly  against  the  vessel, 
or  vehicle  of  commerce  engaged  in  the  transaction  out  of  which 
his  injury  and  his  remedial  right  have  sprung.  Hence,  mari- 
time law  is,  in  the  first  'place,  a  universal  system  whose  principles 
and  general  methods  are  everywhere  the  same ;  and,  in  the  second 
place,  a  system  administered  by  courts  whose  peculiar  powers 
enable  them  to  proceed  in  rem  against  the  instrument  of  com- 
merce irrespective  of  its  ownership,  and  by  their  decrees  against 
it  bind  not  only  such  persons  as  have  notice  of  the  suit,  but  all 
other  interested  parties  throughout  the  world. 

Read:  3  Kent  Com.,  Lect.  xlii,  pp.  1-21; 
Dunlap  on  Admiralty,  pp.  1-57; 

1  Parsons  on  Sliipping  and  Admiralty,  pp.  3-24 ; 

2  Parsons  on  Shipping  and  Admiralty,  pp.  159-174; 
Etting  on  Admiralty  Jurisdiction,  pp.  1-64; 
Desty  on  Shipping  and  Admiralty,  §§  1-7; 

Henry  on  Admiralty,  §§  1-13; 
Benedict  on  Admiralty,  §§  1-12,  225-256; 
Hughes  on  Admiralty,  §§  1-5; 
Spencer  on  Marine  Collisions,  §§  1-10. 

§  378.     Of  Marine  Contracts:  Marine  Torts. 

The  jurisdiction  of  the  admiralty  courts  extends  to  all  con- 
troversies arising  either  out  of  marine  contracts  or  marine  torts. 
A  marine  contract  is  a  contract  concerning  commerce  by  means 
of  vessels  upon  navigable  waters.  A  marine  tort  is  a  wrongful 
action  or  omission,  occurring  either  on  the  land  or  on  the  water, 
whose  injurious  consequences  fall  upon  a  person  or  an  object 
which  at  the  time  is  located  in  or  upon  navigable  waters.  A 
wrong  committed  on  the  water,  and  inflicting  injury  upon  a 
person  or  an  object  on  the  land,  is  not  a  marine  tort.  The 
jurisdiction  of  the  admiralty  courts  over  marine  torts  and  con- 
tracts is  not  exclusive  of  the  jurisdiction  of  the  courts  of  equity 
and  common  law,  unless  the  plaintiff  is  obliged  by  circum- 
stances to  seek  his  remedy  by  a  suit  in  rem  against  the  vessel. 

Rem.  A  contract  in  relation  to  an  object  which  is  to  be 
employed  in  commerce,  as  for  the  building  of  a  ship,  or  in  rela- 
tion to  the  results  of  past  commerce,  as  for  the  sale  of  commodi- 
ties already  transported,  is  not  a  marine  contract.  But  contracts 
for  the  use  or  repair  of  vessels,  or  for  their  supplies  or  insurance, 
or  for  pilotage,  towage,  navigation,  freight,  or  salvage  and  the 
like,  are  incidental  to  the  pursuit  of  commerce,  and  are  marine 
contracts  cognizable  in  admiralty. 


420  ELEMENTARY   LAW  §§  379,  380 

Read:  1  Kent  Com.,  Lect.  xvii,  pp.  353-380; 
Dunlap  on  Admiralty,  pp.  57-S4 ; 

1  Conkling  on  Admiralty,  pp.  1-47; 

2  Parsons  on  Shipping  and  Admiralty,  pp.  174-203 ; 
Etting  on  Admiralty  Jurisdiction,  pp.  45-75,  82-86,  99-102; 
Cohen  on  Admiralty,  pp.  1-35; 

Henry  on  Admiralty,  §§  10-22,  38-40; 

Benedict  on  Admiralty,  §§  13-214  a,  257-262,  313-313  b,  607-645; 

Hughes  on  Admiralty,  §§  6,  7. 

§  379.     Of  Vessels:  Sale:  Registry:  Enrolment. 

A  vcfiscl,  as  the  term  is  used  in  inaritiine  law,  is  any  structure 
which  floats  upon  the  water,  and  is  capable  of  being  used, 
and  is  at  present  intended  to  be  used,  for  the  purposes  of 
navigation  and  commerce.  Its  size,  shape,  and  mode  of  propul- 
sion are  immaterial.  Thus  a  steamship  withdrawn  from  navi- 
gation, and  used  as  a  hotel,  though  still  afloat  is  not  a  vessel ; 
while  a  bathhouse  built  upon  boats,  in  order  that  it  may  be 
moved  with  its  contents  from  place  to  place,  though  firmly 
moored  to  the  shore  remains  a  vehicle  of  commerce.  A  vessel 
is  a  mere  chattel  and  can  be  sold  by  an  ordinary  bill  of  sale, 
coupled  with  delivery  if  the  vessel  is  in  port ;  if  the  vessel  is  at 
sea,  the  bill  of  sale  may  be  immediately  delivered,  and  the  de- 
livery of  the  vessel  may  take  place  on  its  return. 

Rem.  To  entitle  a  vessel  engaged  in  foreign  commerce  to 
the  protection  of  the  United  States  it  must  be  registered  in  the 
custom  house  of  the  collection  district  in  which  the  home  port 
of  the  vessel  is  located;  and  this  registry  must  be  renewed 
whenever  the  vessel  changes  owners,  or  is  altered  in  form  or 
burthen.  If  the  vessel  is  employed  in  domestic  commerce  it 
must  be  enrolled  in  a  similar  manner,  and  obtain  a  coasting 
license. 

Read:  3  Kent  Com.,  Lect.  xlv,  pp.  129-150; 

1  Parsons  on  Shipping  and  Admiralty,  pp.  25-63,  78-89; 

2  Parsons  on  Shipping  and  Admiralty,  pp.  496-508; 
Desty  on  Shipping  and  Admiralty,  §§  8-28,  53-67; 
Benedict  on  Admiralty,  §§  215-224,  263-263  a; 

2  Parsons  on  Contracts,  pp.  272-280; 

Hughes  on  Admiralty,  §  157; 

Spencer  on  Marine  Collisions,  §§  11-13. 

§  380.     Of  the  Ownership  of  Vessels. 

The  builder  of  a  vessel  is  its  first  and  original  owner,  unless 
by  contract  with  other  persons  he  has  conferred  the  title  upon 


§  381  ACTIONS   IN   COURTS   OF   ADMIRALTY  421 

them.  Thus  a  vessel  built  for  other  parties,  to  be  paid  for  in 
instalments  as  the  building  progresses,  remains  the  property 
of  the  builder  until  completed  and  finally  transferred,  if  the 
building  contract  does  not  otherwise  provide.  When  two  or 
more  persons  own  a  vessel  they  are  regarded  by  the  law  as 
tenants  in  common,  and  not  as  partners  unless  they  have  made 
themselves  such  by  an  express  agreement;  and  neither  has  a 
lien  upon  the  vessel  for  any  expense  he  may  have  incurred  on 
its  account.  Where  there  are  only  two  owners,  and  they  cannot 
agree  as  to  the  employment  of  the  vessel,  a  court  of  admiralty 
may  order  the  vessel  to  be  sold  and  the  proceeds  divided.  Where 
there  are  three  or  more  owners  the  majority  may  control  the 
use  of  the  vessel,  upon  giving  a  bond  of  indemnity  to  the  minor- 
ity against  its  loss.  The  same  privilege  on  the  same  conditions 
vests  in  the  minority,  if  the  majority  refuse  to  employ  the  vessel. 
In  either  of  these  cases  the  expense  and  profit  of  the  employ- 
ment are  confined  to  those  owners  by  whom  the  vessel  is  used. 

Rem.  Where  there  are  several  owners  the  control  of  the 
vessel  is  often  entrusted  to  one  of  their  number  who  is  called 
the  '^managing  oivner,"  and  whose  acts  and  contracts  on  their 
joint  behalf  bind  all  the  others.  Additional  agents  of  the  owners 
are  the  ship's  husband,  who  has  charge  of  the  vessel  in  its  home 
port,  superintending  its  repairs  and  preparing  it  for  a  future 
voyage;  and  the  master  who,  during  the  voyage  is  clothed  with 
almost  absolute  authority  over  the  vessel  and  over  the  persons 
and  objects  it  contains. 

Read:  3  Kent  Corn.,  Lect.  xlv,  pp.  ir)l-157; 
1  Conkling  on  Admiralty,  pp.  318-343; 

1  Parsons  on  Shippinj^  and  .Vdiniralty,  pp.  03-07,  90-131; 

2  Parsons  on  Shippinji  and  .Vdiniralty,  pp.  230-246; 
Desty  on  Sliip{)inf;  and  Admiralty,  §§  29-52; 
Henry  on  Admiralty,  §§  23-2.'); 

Benedict  on  Admiralty,  §§  204-200,  274-270; 
2  Parsons  on  Contracts,  pp.  258-200,  205-272; 
Hughes  on  Admiralty,  §§  158,  159. 

§  381.     Of  the  Hiring  of  Vessels :  Charter-Parties. 

Owners  who  do  not  ihenisdves  employ  the  vessel  may  lease 
it  to  other  persons  by  an  iiistrunient  in  writing,  called  a  "rharfrr- 
parti/."  I'he  lease  may  l)e  for  a  d(>finite  period  of  time,  or  for 
a  described  voyage;    and  may  convey  the  vessel  only  or  cover 


422  ELEMENTARY   LAW  §  382 

the  vessel  with  all  the  apparatus  and  supplies  necessary  for  the 
voyage.  A  charter-party  for  a  voyage  usually  prescribes  the 
number  of  days  to  be  allowed  for  loading  and  unloading.  These 
are  called  lay-days,  and  do  not  include  Sundays  or  legal  holi- 
days; but  any  additional  detention  for  these  purposes  entitles 
the  owner  to  collect  demurrage,  which  is  a  fixed  rate  of  com- 
pensation for  each  day  of  delay,  including  Sundays  and  holidays. 

Rem.  Unless  otherwise  provided  in  the  charter-party  the 
owners  guarantee  the  seaworthiness  of  the  vessel  against  even 
latent  defects ;  and  if  the  lease  is  for  a  definite  voyage  they  war- 
rant that  the  vessel  shall  be  ready  for  loading  at  the  stipulated 
port,  and  that  when  loaded  she  shall  proceed  to  her  destination 
with  reasonable  despatch.  The  minor  provisions  of  charter- 
parties  are  usually  quite  numerous,  in  view  of  the  customs  and 
exigencies  of  the  various  species  of  commerce,  and  are  strictly 
interpreted  and  rigidly  enforced. 

Read:  3  Kent  Com.,  Lect.  xlvii,  pp.  201-206; 
1  Conkling  on  Admiralty,  pp.  169-186; 

1  Parsons  on  Shipping  and  Admiralty,  pp.  274-337; 
Desty  on  Shipping  and  Admiralty,  §§  196-216; 
Benedict  on  Admiralty,  §§  287,  288,  297; 

2  Parsons  on  Contracts,  pp.  300-306; 
Hughes  on  Admiralty,  §§  83-89. 

§  382.     Of  Maritime  Liens. 

The  necessity  under  which  a  vessel  often  labors  of  procuring 
repairs  or  supplies  in  foreign  ports,  in  order  to  prosecute  its 
voyage,  has  given  rise  to  the  doctrine  of  maritime  liens.  A 
maritime  lien  differs  from  a  common-law  lien  in  that  it  requires 
no  possession  of  the  vessel  by  the  lienor,  but  constitutes  a 
charge  upon  it  wherever  it  may  go;  and  includes  the  right  to 
seize  and  sell  the  vessel  by  judicial  proceedings  in  order  to 
satisfy  the  debt.  One  species  of  maritime  lien  is  that  which  is 
presumed  by  law  in  favor  of  material  men,  whose  business  it  is 
to  repair  vessels  and  furnish  them  with  necessaries;  and  who 
have  actually  supplied  to  a  foreign  vessel,  upon  the  order  of 
the  master  and  in  the  absence  of  the  owners,  certain  materials 
or  labor  which  were  evidently  needed  by  the  vessel  in  order  to 
enable  it  to  reach  its  destination.  Another  maritime  lien  is 
created  by  a  contract,  called  a  bottomry  hmid,  in  which  the  mas- 
ter, being  with  his  vessel  in  a  foreign  port  and  beyond  reach 


§  382  ACTIONS   IN  COURTS  OF  ADMIRALTY  423 

of  assistance  from  its  owners,  is  compelled  to  pledge  the  vessel 
as  security  for  money  borrowed  in  extreme  necessity,  to  pay 
for  repairs  and  supplies.  A  respondentia  bond  creates  a  mari- 
time lien  upon  the  cargo  of  a  vessel,  which  the  master  is  allowed 
to  pledge  in  similar  emergencies,  when  all  other  resources  fail. 
These  bonds  are  claims  against  the  vessel  or  the  cargo  only, 
and  not  against  the  owners,  and  are  consequently  worthless 
if  the  property  is  lost  before  the  voyage  is  completed.  Hence 
they  bear  a  high  rate  of  interest,  called  raariyie  interest,  and 
for  that  reason  are  rarely  resorted  to  when  a  contract  with 
material  men  will  answer  the  same  purpose.  Among  the  various 
maritime  liens  which  may  attach  to  any  given  vessel  or  cargo 
the  latest  takes  precedence,  on  the  ground  that  the  debt  which 
it  secures  is  presumed  to  have  been  incurred  for  the  benefit 
of  all  prior  lienors  as  well  as  of  the  owners  of  the  property. 
Great  promptness  in  enforcing  these  liens  is  required  of  the 
respective  claimants,  but  especially  of  the  holders  of  bottomry 
bonds,  lest  other  persons  should  be  deceived  into  advancing 
money  or  supplies  on  the  credit  of  a  vessel  already  pledged 
beyond  her  estimated  value. 

Rem.  No  maritime  lien  exists  when  money  is  borrowed,  or 
material  or  labor  furnished,  in  a  domestic  port,  although  the 
local  laws  of  many  States  confer  a  statutory  lien  upon  the 
creditor.  Domestic  ports  are  those  of  the  same  State  to  which 
the  vessel  belongs;  and  in  reference  to  these  liens  the  different 
States  of  the  American  Union  are  foreign  to  one  another.  The 
mortgage  of  a  vessel  does  not  create  a  maritime  lien,  and  is  not 
enforcible  in  admiralty.  The  title  of  the  mortgagee  depends 
upon  that  of  the  owner,  and  hence  is  postponed  to  the  titles  of 
all  persons  whose  claims  grow  out  of  a  marine  necessity. 

Re.a.d:  3  Kent  Com.,  Lect.  xlix,  pp.  352-36.3; 

1  Conkling  on  Adminvlty,  pp.  73-100,  262-295; 

1  Parsons  on  Slnj)pinK  and  Admiralty,  pp.  132-169; 

2  Parsons  on  Shipping  and  Admiralty,  pp.  141-155,  322-337; 
Etting  on  Admiralty  Jurisdiction,  pp.  8(J-98; 

Cohen  on  Admiralty,  pp.  189-205,  242-245; 

Desty  on  Shippin<i  and  .\dmiralty,  §§  68-113; 

Henry  on  Admiralty,  §§  41-73; 

Benedict  on  Admiralty,  §§  267-273,  290-293  a; 

Hughes  on  Admiralty^  §§  42-52.  175-188; 

Waples  on  Procoodings  in  Rem,  §§  455-486,  542-546; 

Smith.  Personal  Property,  §§  151-153; 

2  Parsons  on  Contracts,  pp.  260-264,  280-285. 

0 


424  ELEMENTARY  LAW  §§  383,  384 

§  383.     Of  the  Master  of  a  Vessel. 

The  master  of  a  vessel,  during  the  voyage  and  in  the  absence 
of  the  owners,  is  an  agent  clothed  with  supreme  authority  over 
the  vessel,  cargo,  crew,  and  passengers,  and  is  responsible  for 
its  reasonable  and  effective  exercise.  He  may  bind  the  owners 
by  contracts  made  on  their  behalf,  though  without  their  knowl- 
edge, in  reference  to  matters  relating  to  the  usual  employment 
of  the  vessel,  and  the  means  necessary  for  the  prosecution  of 
its  voyage.  He  may  lease  the  vessel  by  a  charter-party  in  a 
foreign  port;  or  pledge  it  by  bottomry  or  its  cargo  by  respon- 
dentia; and  if  the  voyage  be  inevitably  and  permanently  in- 
terrupted, and  no  other  method  of  protecting  the  interests  of 
his  owners  and  shippers  is  available,  he  may  sell  the  vessel  and 
cargo  to  the  best  possible  advantage,  and  hold  the  proceeds 
for  future  distribution  among  them.  He  may  imprison  and 
sometimes  corporally  punish  disobedient  seameyi,  and  place 
under  physical  restraint  any  passenger  who  refuses  to  submit 
to  proper  discipline.  If  seamen  become  mutinous  he  may  put 
them  ashore  even  in  a  foreign  country,  and  may  leave  them 
there  when  their  further  presence  on  the  vessel  would  imperil 
its  safety  and  that  of  the  remainder  of  the  crew. 

Rem.  The  master  of  a  vessel  is  personally  liable  for  any 
abuse  of  his  authority,  as  well  as  on  any  contract  he  may  make 
on  behalf  of  the  vessel  and  its  owners ;  and  may  be  removed  by 
a  majority  of  the  owners  even  though  he  is  himself  a  part  owner. 
By  gross  misconduct,  causing  serious  damage  to  his  owners, 
he  may  forfeit  his  entire  wages,  and  in  less  grievous  cases  the 
losses  he  occasions  them  by  unwarrantable  acts  may  be  de- 
ducted from  the  moneys  due  him  on  the  settlement  of  their 
accounts. 

Read:  3  Kent  Com.,  Lect.  xlvi,  pp.  159-176; 
1  Conkling  on  Admiralty,  pp.  311-317; 

1  Parsons  on  Shipping  and  Admiralty,  pp.  68-74; 

2  Parsons  on  Shipping  and  Admiralty,  pp.  3-31; 
Desty  on  Shipping  and  Admiralty,  §§  114-140; 
Benedict  on  Admiralty,  §  299; 

Hughes  on  Admiralty,  §11; 

2  Parsons  on  Contracts,  pp.  332-336. 

§  384.     Of  the  Seamen. 

All  persons  who  by  contract  are  employed  to  render,  during 
a  voyage,   any  service  on  board  the  vessel  which  contributes 


§  384  ACTIONS   IN  COURTS   OF   ADMIRALTY  425 

in  any  manner  to  the  prosecution  of  the  voyage  are  seamen. 
This  class,  therefore,  includes  all  officers  other  than  the  master, 
and  all  clerks,  cooks,  and  other  workmen  male  or  female,  as 
well  as  the  sailors  who  actually  engage  in  navigating  the 
vessel.  The  contract  of  the  seamen  with  the  master  or  the 
owners  is  made  by  a  written  agreement,  called  the  "ship- 
ping articles,"  in  which  the  voyage  or  the  term  of  service  and 
the  rate  of  wages  are  particularly  described,  and  by  which 
penalties  are  provided  for  the  violation  of  the  contract.  These 
articles  are  liberally  construed  in  favor  of  the  seamen,  and  any 
stipulation  they  may  make  to  waive  the  customary  remedies 
for  the  enforcement  of  their  rights  is  void.  Having  signed  these 
articles  the  seamen  must  report  for  duty  at  the  appointed  time, 
and  await  their  orders  from  the  master.  If  they  refuse  to  sail 
on  the  ground  that  the  vessel  is  not  seaworthy  a  majority  of 
them,  with  the  mate,  may  demand  an  inspection  of  the  vessel; 
which  will  be  made  at  their  expense  if  it  is  found  in  good  con- 
dition, and  with  their  release  from  duty  if  it  proves  to  be  un- 
safe for  the  intended  voyage.  During  the  voyage  the  seamen 
are  subject  to  the  master,  and  he  may  compel  their  obedience 
by  imprisonment,  corporal  punishment,  or  in  great  emergencies 
by  taking  life.  The  seamen  have  a  right  to  be  returned  in  the 
vessel  to  the  port  from  which  they  shipped  unless  the  articles 
otherwise  provide,  but  this  right  may  be  forfeited  by  persistent 
insubordination,  or  they  may  lose  it  by  such  sickness  or  other 
disability  as  renders  their  transportation  to  the  home  port 
impracticable.  When  discharged  in  a  foreign  port  for  dis- 
obedience the  master  must  receive  them  back  if  they  repent 
and  offer  to  return  to  duty;  and  when  discharged  with  their 
consent,  or  as  a  result  of  the  compulsory  abandonment  of  the 
voyage,  their  passage  home  must  be  procured  at  the  expense 
of  the  vessel,  or,  if  this  be  impossible,  at  the  expense  of  the 
govenment   through   its   local   consuls. 

Rem.  Seamen  hired  for  ihr  rnj/ngr  are  entitled  to  their  entire 
wages  though  they  become  incapable  of  service  during  the 
voyage  from  sickness,  or  other  injury  incurred  in  the  per- 
formance of  their  duty,  unless  at  the  time  of  shipment  they 
misrepresented  their  state  of  health  or  physical  ability.  For  ex- 
traordinary services  recjuired  by  the  master  on  account  of  marine 


426  ELEMENTARY   LAW  §  385 

disaster,  or  the  illness  of  other  seamen,  they  can  claim  no  extra 
compensation;  their  general  duty  to  the  vessel  obliging  them 
to  do  all  in  their  power  for  its  safety  under  all  the  exigencies  of 
the  voyage.  The  right  to  wages  may  he  forfeited  by  desertion 
without  sufficient  cause  and  refusal  to  return,  or  by  any  conduct 
which  justifies  the  master  in  discharging  them  before  the  voyage 
is  completed;  and  lesser  grades  of  fault  on  their  part  may  war- 
rant the  owners  in  withholding  a  sufficient  portion  of  their  wages 
as  an  indemnity  for  the  injury  they  have  caused.  When  the 
shipping  articles  stipulate  that  the  wages  shall  be  proportioned 
to  the  time  of  service  they  are  payable  accordingly,  except  in 
cases  where  the  seamen  are  wrongfully  discharged  before  the 
voyage  ends;  then  they  are  entitled  to  be  paid  at  the  stipulated 
rate  for  the  actual  time  of  service,  and  for  such  additional  period 
as  will  suffice  for  their  return  to  the  port  from  which  they  sailed. 
The  unpaid  wages  of  seamen  are  not  assignable,  nor  can  they 
be  attached.  They  constitute  a  lien  upon  the  vessel  which  takes 
precedence  of  every  other  lien,  except  that  of  salvors  who  rescue 
a  wrecked  or  abandoned  vessel,  and  thus  save  it  for  the  benefit 
of  the  unpaid  seamen  as  well  as  of  prior  parties.  In  suing  for 
their  wages  seamen  may  proceed  against  the  vessel,  freight,  and 
master,  or  against  the  vessel  and  freight,  or  against  the  master 
or  owner  alone  in  personam. 

Read:  3  Kent  Com.,  Lect.  xlvi,  pp.  176-199; 
Dunlap  on  Admiralty,  pp.  102-113; 

1  Conkling  on  Admiralty,  pp.  107-160; 

2  Conkling  on  Admiralty,  pp.  45-69; 

2  Parsons  on  Shipping  and  Admiralty,  pp.  32-105,  364-368; 

Cohen  on  Admiralty,  pp.  231-241; 

Desty  on  Shipping  and  Admiralty,  §§  141-195; 

Benedict  on  Admiralty,  §§  277-284,  503-508; 

Hughes  on  Admiralty,  §§  8-10; 

Waples  on  Proceedings  in  Rem,  §§  487-501; 

2  Parsons  on  Contracts,  pp.  336-347. 

§  385.    Of  the  Navigation  of  Vessels:  Pilotage:  Towage. 

While  on  the  open  sea  the  master  is  presumed  to  be  capable 
of  navigating  his  own  vessel,  but  when  approaching  land  or 
entering  harbors  or  rivers  both  prudence  and  the  law  oblige 
him  to  take  on  board  a  pilot,  whose  official  license  attests  his 
familiarity  with  the  local  channels  and  obstructions,  and  his 
ability  to  guide  the  vessel  in  safety  to  her  destination.  This 
rule  applies  alike  to  outward  and  inward  bound  vessels;  and 
to  ensure  its  observance  the  master  is  required  to  pay  the  cus- 
tomary pilot  fees  even  when  he  refuses  or  does  not  need  the 


§  385  ACTIONS   IN  COURTS   OF  ADMIRALTY  427 

service.  The  pilot,  while  on  board  the  vessel  in  his  official 
capacity,  is  the  temporary  master,  and  cannot  be  interfered 
with  by  the  actual  master  as  to  the  performance  of  his  duties 
as  pilot  unless  he  shows  himself  to  be  reckless  or  incompetent. 
He  has  charge  of  the  management  of  the  vessel;  prescribes  its 
course  and  speed;  fixes  the  place  and  mode  of  anchorage; 
and  is  liable  for  any  accident  that  may  happen  through  his 
negligence  or  want  of  skill.  He  is  so  far  the  agent  of  the  owners 
that  they  are  responsible  to  third  parties  for  damages  caused 
by  the  vessel  while  under  his  control.  The  fees  of  a  pilot  who 
has  tendered  his  services  to  the  master  can  be  collected  by  a 
suit  in  rem  against  the  vessel,  whether  or  not  the  tender  is 
accepted. 

Rem.  The  navigation  of  vessels  in  harbors  and  rivers,  in 
modern  times,  often  requires  the  service  known  as  towage.  This 
service  consists  in  the  propulsion  of  the  vessel  by  an  external 
force  along  her  usual  course  of  transit,  and  is  generally  performed 
by  other  boats,  called  tugs.  The  reciprocal  relations  between 
the  tug  and  tow,  and  the  legal  obligations  which  grow  out  of 
them,  are  not  always  the  same.  If  the  tug  takes  possession  of 
the  tow,  and  not  only  propels  it  but  directs  its  movements,  the 
owners  of  the  tug  are  liable  for  any  accident  either  to  the  tow  or 
to  other  vessels  from  its  careless  navigation.  On  the  other 
hand,  if  the  tug  is  firmly  attached  to  the  tow,  and  while  the  tug 
furnishes  the  motive  power  both  vessels  are  navigated  from  the 
tow  by  the  master  or  pilot  of  the  tow,  responsibility  for  accident 
rests  upon  the  owners  of  the  tow.  When  the  tug  and  tow  are 
remotely  attached  by  a  hawser,  and  though  the  tug  supplies  the 
motive  power  each  vessel  is  navigated  by  its  own  master,  only 
that  one  would  be  responsible  wh{)se  negligence  resulted  in  the 
injury.  The  master  of  a  tug  which  undertakes  the  navigation 
of  a  tow  must  know  the  channel  and  its  dangers,  and  l)e  qualified 
to  conduct  the  tow  to  the  proposed  locality.  His  contract  with 
the  tow  implies  a  warrantj/  that  his  tug  is  properly  equipped  for 
the  service  to  be  rendered.  The  towage  fees  constitute  a  claim 
against  the  vessel,  and  may  be  collected  by  a  suit  in  rem. 

Read:  1  Conkling  on  Admiralty,  pp.  296-310; 

2  Parsons  on  Shipping  and  Adniirahy,  pp.  106-119; 
Desty  on  Shippinp;  and  Admiralty,  §§  331-352; 
Benedict  on  Admiralty,  §  289; 
Hughes  on  Admiralty,  §§  12-19,  56-61; 
Waples  on  Proceedings  in  Rem,  §§  502-505; 
Spencer  on  Marine  Collisions,  §§  121-139,  162,  163; 
2  Parsons  on  Contracts,  pp.  348,  349. 


428  ELEMENTARY   LAW  §  386 

§  386.     Of  the  Navigation  of  Vessels:    Collisions:    Signal  and 
Sailing  Rules. 

A  collision  may  take  place  between  two  vessels  without  the 
fault  of  either,  or  through  the  negligence  of  both,  or  through 
the  wrongful  conduct  of  one  alone.  Where  neither  vessel  is 
in  fault  no  liability  attaches,  and  the  loss  lies  where  it  falls. 
Where  both  vessels  are  in  fault  the  loss  is  equally  divided  be- 
tween them,  without  reference  to  the  degrees  of  their  respective 
negligence;  the  one  which  has  sustained  the  least  injury  con- 
tributing to  the  other  a  sum  sufficient  to  make  the  loss  the  same. 
If  one  vessel  alone  is  in  fault  it  must  bear  its  own  loss,  and  com- 
pensate the  other  for  the  damage  it  has  suffered.  In  estimating 
these  damages,  if  the  loss  is  total,  the  amount  is  measured  by  the 
market  value  of  the  vessel  at  the  time  of  the  collision,  and 
the  net  freight  for  the  voyage;  if  the  loss  is  partial,  it  includes 
the  cost  of  saving  and  repairing  the  vessel,  and  the  value  of  her 
use  during  the  period  which  elapses  while  she  is  laid  up  for 
repairs.  It  is  the  duty  of  each  of  the  colliding  vessels  to  stand 
by  and  aid  the  other,  until  it  is  apparent  that  no  further  assist- 
ance is  required;  and  the  failure  to  perform  this  duty  is  prima 
facie  evidence  that  the  deserting  vessel  was  responsible  for  the 
collision.  Damages  to  third  parties  arising  from  the  collision 
are  estimated  in  the  same  manner,  except  that  if  the  injury 
results  from  the  fault  of  both  colliding  vessels  each  must  pay 
half  the  loss;  and  if  one  of  the  vessels  is  of  insufficient  value 
for  that  purpose  the  amount  must  be  made  up  by  the  other. 

Rem.  Mainly  to  prevent  collisions  "signal  and  sailing  rules" 
are  prescribed  by  law.  The  signal  rules  require  the  display  at 
night  of  certain  white  and  colored  lights  whereby  the  character 
and  size  of  a  vessel,  and  the  direction  in  which  it  is  moving,  are 
indicated;  and  the  production  of  certain  sounds  by  horns  or 
whistles  as  a  warning  in  case  of  fog,  or  as  a  notice  to  other  craft 
of  the  course  to  be  pursued.  The  sailing  rules  govern  the  con- 
duct of  moving  vessels  when  meeting  or  overtaking  other  vessels; 
obliging  those  which  are  most  easily  handled  to  keep  out  of  the 
way  of  others  and  each,  if  of  equal  ability,  to  pass  to  the  right 
in  pursuance  of  the  usual  law  of  the  road ;  and  requiring  all  to 
do  whatever  else  may  be  necessary  and  possible  in  order  to 
avoid  a  collision.  The  sailing  rules  assume  that  the  vessels  can 
be  seen  or  their  signals  heard,  and  when  this  is  not  the  case  the 
rules  do  not  apply. 


§  387  ACTIONS  IN  COURTS  OF  ADMIRALTY  429 

Read:  3  Kent  Com.,  Lect.  xlvii,  pp.  230-232: 
1  Conkling  on  Admiralty,  pp.  370-426; 

1  Parsons  on  Shipping  and  Admiralty,  pp.  525-608  i 
Cohen  on  Admiralty,  pp.  206-230; 

Desty  on  Shipping  and  Admiralty,  §§  353-406; 

Henry  on  Admiralty,  §§  74-93; 

Benedict  on  Admiralty,  §  312; 

Hughes  on  Admiralty,  §§  118-156; 

Waples  on  Proceedings  in  Rem,  §§  516-520; 

Spencer  on  Marine  Collisions,  §§  18-120,  140-381; 

2  Parsons  on  Contracts,  pp.  308-314. 

§  387.  Of  the  Cargo  and  Freight :  Bills  of  Lading :  Limited  Lia- 
bility Acts. 
The  owners  of  a  vessel  may  employ  it  in  the  transportation 
of  their  own  merchandise,  or  as  a  common  carrier  conveying 
any  merchandise  that  may  be  offered,  or  as  a  private  carrier 
transporting  goods  for  certain  shippers  only.  Where  the  owners 
carry  only  their  own  merchandise  no  legal  obligations  exist 
between  the  vessel  and  its  cargo.  Where  they  carry  the  goods 
of  others  the  law  implies  a  contract  that  the  vessel  is  seaworthy 
at  the  commencement  of  the  voyage,  and  that  it  will  proceed 
to  its  destination  by  the  customary  route  without  unnecessary 
delay.  The  merchandise  becomes  cargo,  for  which  the  owners 
of  the  vessel  are  responsible,  when  it  is  delivered  by  the  shipper 
on  board  the  vessel  to  the  master,  or  some  other  person  who  is 
authorized  to  receive  it.  It  must  then  be  stowed  in  a  suitable 
place  and  manner,  usually  by  expert  stevedores  whose  fees  for 
the  service  are  a  lien  upon  the  vessel.  On  receiving  the  mer- 
chandise as  cargo  the  master  should  prepare  and  sign  a  bill 
of  Iculing  in  triplicate,  of  which  one  copy  is  delivered  to  the 
shipper,  one  is  forwarded  to  the  consignee,  and  the  other  is 
retained  by  the  master.  The  bill  of  lading  sets  forth  the  con- 
tract between  the  shipper  and  the  owner  of  the  vessel,  describ- 
ing the  merchandise  by  its  quantity  and  markings,  the  names 
of  the  shipper  and  consignee,  the  place  of  departure  and  dis- 
charge, the  name  of  the  master  and  vessel,  and  the  price  to  be 
paid  for  transportation.  The  indorsement  of  a  bill  of  lading 
to  a  third  person  transfers  to  him  the  property  in  the  goods. 
Its  stipulation  as  to  carriage  g(nierally  provides  that  the  mer- 
chandise shall  be  delivered  at  the  port  of  discharge  to  the  con- 
signee or  his  indorsee  in  the  same  condition  in  which  it    was 


430  ELEMENTARY   LAW  §  387 

when  received  on  board  the  vessel,  the  perils  of  the  sea  ex- 
cepted. This  contract  obhges  the  vessel  to  sail  as  soon  as  she 
is  ready  for  her  voyage,  and  proceed  to  the  port  of  discharge 
without  delay,  and  not  to  deviate  from  the  usual  route  without 
some  just  and  constraining  cause,  —  such  as  to  escape  a  storm 
or  pirates,  or  to  procure  necessary  supplies,  or  to  aid  another 
vessel  in  distress.  If  the  voyage  should  he  interrupted  by  dis- 
aster, and  the  vessel  cannot  proceed  within  a  reasonable  time, 
the  cargo  must  be  transferred  to  some  other  competent  vessel 
and  duly  forwarded;  or  if  this  be  impossible  the  master  must 
act  as  agent  for  the  shipper  in  protecting,  and  in  extreme  cases 
in  selling,  the  cargo  on  his  account.  Upon  reaching  the  port 
of  destination  with  the  cargo  the  master  must  give  notice  of 
his  arrival  to  the  consignee,  and  offer  to  discharge  the  goods 
from  the  vessel;  but  if  he  intends  to  enforce  against  them  the 
lien  of  the  vessel  for  the  freight  he  must  not  suffer  the  con- 
signee to  remove  them  until  the  freight  is  paid.  In  the  absence 
of  a  special  agreement  freight  is  neither  due  nor  earned  until 
the  voyage  is  completed;  and  if  the  voyage  is  broken  up,  and 
the  cargo  is  not  forwarded  by  another  vessel,  or  accepted  by  the 
shipper  or  the  consignee  at  the  intermediate  port  reached  by 
the  vessel,  no  freight  is  payable.  Acceptance  of  the  cargo  at 
the  intermediate  port  entitles  the  vessel  to  freight  pro  rata. 

Rem.  For  the  safety  and  good  condition  of  the  cargo  while 
in  transit  the  vessel  is  liable,  unless  the  loss  or  deterioration  is 
produced  by  "dangers  of  the  sea,"  —  which  include  all  unavoid- 
able accidents  in  navigation,  occurring  without  negligence  on  the 
part  of  the  master  or  crew.  This  general  responsibility  is  re- 
stricted in  the  United  States  by  statutes  known  as  the  "Limited 
Liability  Acts."  Some  of  these  statutes  exempt  the  owners  of 
the  vessel  from  responsibility  for  losses  occasioned  by  faults 
or  errors  in  navigating  or  managing  the  vessel,  or  by  dangers 
of  the  sea,  or  by  acts  of  God  or  the  public  enemy,  or  by  inherent 
defects  in  the  merchandise  or  its  package,  or  by  seizure  under 
legal  process,  or  by  the  acts  or  omissions  of  the  shipper  or  con- 
signee, or  by  the  efforts  of  the  master  and  crew  to  save  life  or 
property  at  sea;  provided  such  owners  had  exercised  due  dili- 
gence to  make  the  vessel  in  all  respects  seaworthy,  and  had 
properly  manned,  equipped,  and  supplied  her.  Other  statutes 
limit  the  liability  of  those  owners,  who  are  not  privy  to  the 
wrong  resulting  in  the  loss,  to  the  value  of  their  interest  in  the 


§  388  ACTIONS   IN  COURTS    OF  ADMIRALTY  431 

vessel,  both  in  cases  of  injury  to  its  own  cargo  and  in  cases  of 
damage  to  other  vessels  and  their  cargoes  by  collision. 

Read:  3  Kent  Com.,  Lect.  xlvii,  pp.  206-230,  248-251; 
Dunlap  on  Admiralty,  pp.  106,  107 ; 
1  Conkling  on  Admiralty,  pp.  161-169,  187-250,  257-261; 

1  Parsons  on  Shipping  and  Admiralty,  pp.  170-273,  479-524,  609- 
647; 

2  Parsons  on  Shipping  and  Admiralty,  pp.  246-253 ; 
Desty  on  Shipping  and  Admiralty,  §§  217-289; 
Benedict  on  Admiralty,  §§  285,  286; 

Hughes  on  Admiralty,  §§  53-55,  70-82,  90-95; 
Waples  on  Proceedings  in  Rem,  §§  527-533; 
2  Parsons  on  Contracts,  pp.  285-300,  307,  308. 

i  388.     Of  General  Average. 

Among  the  powers  vested  by  necessity  in  the  master  of  a 
vessel  during  the  voyage  is  that  of  sacrificing  a  portion  of  the 
property  in  his  charge,  in  order  to  save  the  remainder.  When 
this  sacrifice  is  made  by  the  master  himself  or  by  his  authority, 
and  is  voluntary  and  for  the  benefit  of  all,  and  is  necessary  and 
results  in  saving  the  property  at  risk,  and  the  emergency  has 
not  been  caused  by  the  fault  of  the  owners  of  the  property 
sacrificed,  the  loss  is  averaged  or  apportioned  among  all  the 
owners  of  the  property  subjected  to  the  common  danger;  and 
those  whose  property  has  thereby  been  saved  must  contribute 
their  shares  of  the  loss  to  the  owners  of  the  property  sacrificed, 
in  proportion  to  the  value  of  the  respective  interests  at  stake, 
thus  placing  all  the  owners  upon  equal  ground. 

Rem.  The  sacrifice  which  calls  for  the  application  of  this 
doctrine  of  general  average  may  consist  in  a  jettison  of  the  cargo, 
or  of  the  masts,  boatS;  or  other  parts  of  the  vessel ;  or  in  beach- 
ing  the  vessel  itself  to  prevent  it  from  sinking  and  losing  the 
<;argo ;  or  in  sndtling  the  vessel  to  extinguish  a  fire  in  the  cargo ; 
or  in  any  other  act  which  destroys  one  part  of  that  which  is  ex- 
posed to  the  common  danger  for  the  sake  of  the  residue. 

Read:  3  Kent  Com.,  T.ect.  yl\\i,  pp.  2.32-244; 
1  Conkling  on  Admiralty,  pp.  250-257; 

1  Parsons  on  Shipping  and  .\dmiralty,  pp.  338-478; 
Desty  on  Shipping  and  .Vdmiralty,  §§  290-302; 
Benedict  on  Admiralty.  §§  205,  296; 

Hughes  on  Admiralty,  §5  20,  21 ; 

2  Parsons  on  Contracts,  pp.  323-332. 


432  ELEMENTARY  LAW  §§  389,  390 

§  389.     Of  Salvage. 

Whenever  a  vessel  or  its  cargo  is  in  a  situation  of  distress, 
from  which  apparently  it  cannot  be  rescued  by  the  master,  crew, 
and  passengers,  any  third  party  may  intervene,  with  or  with- 
out a  contract  with  the  master,  and  if  he  succeeds  in  saving 
any  of  the  property  he  will  be  entitled  to  a  proper  compensation. 
This  compensation  is  known  as  salvage.  Its  amount  is  deter- 
mined either  by  agreement  between  the  salvors  and  the  owners ; 
or  by  the  court  in  view  of  the  value  of  the  property  saved,  the 
character,  skill,  danger,  and  expense  of  the  salvors,  and  the 
proportion  of  the  property  saved  to  the  property  lost.  To  en- 
courage salvage  enterprise,  especially  in  cases  where  life  as 
well  as  property  is  in  danger,  the  law  is  liberal  to  the  salvor 
in  its  estimate  of  the  amount  which  he  has  earned. 

Rem.  The  forms  of  salvage  service  are  of  great  variety,  and 
of  every  degree  of  magnitude,  from  the  towing  into  port  of  a 
disabled  ocean  steamer  with  her  passengers  and  cargo  to  the 
rescue  from  tiie  breakers  of  a  single  bale  of  merchandise.  But 
no  service  rendered  by  the  master,  pilot,  crew,  or  passengers  in 
their  ordinary  lines  of  duty  is  of  this  character,  nor  does  the 
hazard  which  attends  their  efforts  give  them  any  claim  for 
compensation  beyond  their  stipulated  wages. 

Read:  3  Kent  Com.,  Lect.  xlvii,  pp.  245-248; 

1  Conkling  on  Admiralty,  pp.  344-369; 

2  Parsons  on  Shipping  and  Admiralty,  pp.  260-322; 
Cohen  on  Admiralty,  pp.  36-188; 

Desty  on  Shipping  and  Admiralty,  §§  303-330; 
Benedict  on  Admiralty,  §§  300-300  e; 
Hughes  on  Admiralty,  §§  62-69; 
Waple?  on  Proceedings  in  Rem,  §§  506-514; 
2  Parsons  on  Contracts,  pp.  315-322. 

§  390.     Of  Marine  Insurance. 

Marine  insurance  is  a  contract  whereby  one  party,  in  con- 
sideration of  a  stipulated  premium,  agrees  to  indemnify  another 
against  certain  marine  hazards  to  which  his  vessel,  cargo,  or 
freight  are  about  to  be  exposed,  either  during  a  particular  voy- 
age or  for  a  specified  period  of  time.  Any  person  can  effect  such 
an  insurance  who  has  an  insurable  interest  in  the  property,  — 
that  is,  whose  relation  to  the  property  entitles  him  to  a  pecuniary 
benefit  from  its  preservation  or  would  subject  him  to  a  pecuni- 


§  390  ACTIONS   IN  COURTS   OF  ADMIRALTY  433 

ary  loss  if  it  were  injured  or  destroyed.  The  contract  is  cus- 
tomarily in  writing,  and  contains  such  provisions  as  the  parties 
may  determine  in  reference  to  the  property  insured,  the  dan- 
gers insured  against,  and  the  amount  to  be  paid  in  case  of  loss. 
Unless  the  contract  expressly  declares  the  contrary  the  law 
implies  a  warrant!/  by  the  party  insured  that  the  vessel  is  sea- 
worthy at  the  time  of  leaving  port ;  that  it  will  follow  the  usual 
route  to  its  destination  without  unnecessary  deviation;  that 
if  there  is  a  choice  of  routes  it  will  pursue  one  which  is  reason- 
able and  safe;  and  that  it  will  not  engage  in  illegal  traffic. 
There  is  also  an  implied  warranty  that  all  representations  of 
material  facts,  made  by  the  insured  in  order  to  obtain  the 
insurance,  are  true;  and  that  he  has  not  concealed  any  fact, 
known  to  himself,  which  the  insurer  does  not  know  but  has 
the  right  to  know.  A  breach  of  these  implied  warranties,  or 
of  any  express  condition  essential  to  the  contract,  avoids  the 
policy.  The  perils  of  the  sea  insured  against  are  those  extra- 
ordinary occurrences  which  arise  from  the  action  of  the  winds 
or  waves,  or  from  objects  external  to  the  vessel  with  which  it 
collides.  Perils  from  ordinary  occurrences  may  be  covered  by 
the  contract  if  specifically  enumerated,  but  not  otherwise.  A 
loss  occasioned  by  a  series  of  causes  is  attributed  to  the  last 
efficient  cause;  and  if  this  cause  is  not  among  the  perils  cov- 
ered by  the  policy  the  insurer  is  not  liable,  and  the  insured 
must  bear  the  loss.  A  total  loss  is  one  in  which  the  insured 
property  is  entirely  destroyed;  or  is  so  cast  away  or  injured  as 
to  be  of  no  value  cither  to  the  insured  or  the  insurer;  or  where 
the  property  has  sustained  such  damage  that  the  insured  has 
a  right  to  abandon  it  to  the  insurer  and  collect  from  him  the 
same  indemnity  as  if  it  had  been  totally  destroyed.  The  total 
loss  of  certain  separable  articles  is  not  a  total  but  a  partial 
loss  of  the  vessel  or  cargo  considered  as  a  whole.  The  amount 
of  insurance  to  be  paid  in  case  of  total  loss  is  measured  by 
the  value  of  the  property.  In  what  is  called  a  valued  policy 
this  amount  is  fixed  by  stipulation  in  the  policy  itself;  in  an 
open  policy  it  is  left  to  be  Jiscertained  by  inquiry  when  the  loss 
occurs.  In  a  case  of  partial  loss  the  amount  payable  is  such 
a  fraction  of  the  amount  insured  as  the  value  of  the  property 

destroyed  or  abandoned  bears  to  the  value  of  the  property  in- 

28 


434  ELEMENTARY   LAW  §  391 

sured.     In  a  loss  occasioned  by  the  fault  of  third  parties  an 

insurer  paying  the  insurance  is  subrogated  to  whatever  rights 

of  action  the  insured  may  have  possessed  against  the  persons 
who  have  caused  the  injury. 

Rem.  In  reference  to  a  vessel  the  right  of  abandonment  exists 
if  the  cost  of  saving  and  repairing  the  vessel  would  exceed  one- 
half  of  its  value  when  repaired;  in  reference  to  the  cargo  it 
arises  when  the  cargo,  though  still  existing,  is  in  such  a  state  that 
it  cannot  be  forwarded,  or  where  no  means  of  forwarding  it  are 
available  and  no  reasonable  market  for  it  is  at  hand,  or  where 
its  value  is  so  far  diminished  that  under  all  the  circumstances  it 
is  worthless  to  its  owner.  The  property  when  abandoned  to  the 
insurer,  and  accepted  by  him,  becomes  his  property,  to  be  dis- 
posed of  as  he  pleases;  and  he  in  turn  is  liable  to  the  insured 
for  the  amount  of  the  insurance  as  if  the  property  had  been  ac- 
tually destroyed. 

Read:  3  Kent  Com.,  Lect.  xlviii,  pp.  253-352; 
Benedict  on  Admiralty,  §  294 ; 
Hughes  on  Admiralty,  §§  22-41; 
2  Parsons  on  Contracts,  pp.  350-416. 

§  391.     Of  Marine  Torts  and  Crimes. 

Since  a  marine  tort  derives  its  maritime  character  entirely 
from  the  locality  in  wliich  it  is  committed  it  is  not  necessarily 
connected  either  with  commerce  or  navigation.  Even  those 
which  are  perpetrated  on  board  vessels  are  often  mere  personal 
injuries,  differing  in  no  respect  from  similar  injuries  com- 
mitted upon  the  land.  Assaults  by  the  master  upon  the  sea- 
men; negligence  toward  servants  or  strangers;  damage  to 
property  within  or  outside  the  vessel;  abduction  of  unwilling 
passengers,  —  are  all  instances  of  such  wrongs,  and  are  action- 
able equally  in  the  common  law  and  admiralty  courts. 

Rem.  Crimes  committed  upon  navigable  waters  were  held  in 
England  to  be  within  the  jurisdiction  of  the  admiralty.  This 
doctrine  has  been  advocated  in  the  United  States,  but  our  courts 
of  admiralty  do  not  exercise  such  jurisdiction  unless  it  is  con- 
ferred lipon  them  by  specific  statutes. 

Read:  Dunlap  on  Admiralty,  pp.  281-288; 

1  Conkling  on  Admiralty,  pp.  427-460 ; 

2  Parsons  on  Shipping  and  Admiralty,  pp.  347-351 ; 
Cohen  on  Admiralty,  p.  265; 


§  392  ACTIONS    IN   COURTS   OF  ADMIRALTY  435 

Henry  on  Admiralty,  §§  26-37; 

Benedict  on  Admiralty,  §§  308-311,  600-603; 

Hughes  on  Admiralty,  §§  96-117; 

Waples  on  Proceedings  in  Rem,  §§  521-526; 

Spencer  on  Marine  Collisions,  §§  14-17. 

§  392.  Of  Admiralty  Jurisdiction  over  Cases  of  Prize  and  Seizure. 
In  this  country  the  courts  of  admiralty  have  exclusive  juris- 
diction over  cases  of  prize  and  seizure.  Prize  includes  all 
vessels  and  other  personal  property  which  is  taken  out  of  the 
hands  of  the  enemy  by  the  right  of  war,  either  on  the  high  seas 
or  in  foreign  ports  or  harbors,  or  on  land  by  the  naval  forces 
when  acting  alone  or  in  conjunction  with  the  land  forces.  The 
property  thus  captured  does  not,  however,  vest  in  the  captors 
until  their  title  to  it  has  been  examined  and  estabhshed  by  a 
court  of  admiralty.  It  is  the  duty  of  the  captors  to  bring  the 
property  into  port,  and  there  notify  the  court,  or  the  board  of 
prize  commissioners  which  is  appointed  for  that  purpose  in 
time  of  war,  of  the  presence  of  the  prize  and  the  place  of  its 
detention.  Thereupon  the  commissioners  or  the  court  examine 
the  property  and  provide  for  its  temporary  safety  or,  when  per- 
ishable, for  its  sale  and  the  custody  of  its  proceeds,  and  in- 
stitute a  preliminary  inquiry  into  the  legality  of  the  capture 
by  propounding  to  the  persons  taken  with  the  property,  or 
now  claiming  it  against  the  captors,  certain  standing  interrog- 
atories as  to  their  relation  to  the  prize,  its  condition,  and  the 
circumstances  of  its  capture.  The  answers  to  these  interroga- 
tories are  returned,  with  the  ship's  papers  and  other  documents, 
to  the  clerk  of  the  court.  Regular  proceedings  in  admiralty 
for  the  condemnation  of  the  property  may  then  be  commenced 
by  libel,  followed  by  the  answer,  hearing,  and  decree.  If  the 
property  is  condemned  it  is  sold,  and  the  proceeds  are  given 
to  the  captors  either  in  whole  or  in  part ;  in  whole,  when  they 
wrested  the  prize  from  a  superior  or  equal  force ;  in  part,  when 
taken  from  a  force  inferior  to  their  own ;  the  residue  being 
appropriated  by  the  United  States.  A  decree  that  the  capture 
was  unlawful  restores  the  property  to  the  former  owners,  with 
a  right  of  action  for  damages  against  the  captors. 

Rem.     Seizures  of  property  for  violations  of  the  revenue  laws, 
or  for  engaging  in  illicit  trade  or  for  other  offences,  when  the 


436  ELEMENTARY   LAW  §  393 

seizure  is  made  in  navigable  waters,  also  give  rise  to  proceedings 
in  admiralty.  The  guilty  property  is  ipso  facto  forfeited  to  the 
United  States,  but  its  guilt  must  be  first  estabhshed  in  a  suit  in 
admiralty  brought  by  the  officer  in  charge  in  the  name  of  the 
United  States,  giving  the  owners  of  the  property  an  opportunity 
to  be  heard  in  its  defence.  When  the  guilty  property  is  seized  on 
board  a  vessel,  the  vessel  also  may  be  forfeited  if  its  master  or 
owners  were  accomplices  in  the  offence. 

Read:  2  Parsons  on  Shipping  and  Admiralty,  pp.  218-222,  253-259, 
458-478; 
Etting  on  Admiralty  Jurisdiction,  pp.  75-82; 
Desty  on  Shipping  and  Admiralty,  §§  407-448; 
Benedict  on  Admiralty,  §§  301-307,  509-512  /; 
Waples  on  Proceedings  in  Rem,  §§  140-454,  534-541. 

§  393.     Of  Actions  in  Rem  and  Actions  in  Personam. 

Actions  in  admiralty  are  either  actions  in  rem  alone,  or  actions 
in  personam  alone,  or  actions  both  in  personam  and  in  rem. 
An  action  in  rem  is  an  action  brought  directly  against  the  vessel, 
cargo,  or  other  property  in  reference  to  which  the  right  of  action 
is  asserted;  making  the  property  itself  the  actual  and  nominal 
defendant  irrespective  of  its  ownership  or  possession,  and 
seeking  redress  by  its  seizure,  sale,  and  the  application  of  its 
proceeds  in  compensation  for  the  alleged  claim  or  injury.  This 
form  of  action  lies  whenever  the  plaintiff  has  a  maritime  lien 
upon  the  property,  —  as  for  seaman's  wages,  repairs,  sup- 
plies of  material-men,  bottomry,  respondentia,  pilotage,  towage, 
freight,  salvage,  or  damages  caused  by  a  collision.  An  action  in 
personam  is  an  action  against  a  personal  defendant  on  account 
of  some  contract  obligation  or  claim  for  damages  on  which  he 
is  personally  liable.  This  form  of  action  lies  in  all  admiralty 
cases  except  those  in  which  the  vessel,  cargo,  or  other  property 
is  made  by  law  or  contract  solely  responsible  for  the  claim  of 
the  plaintiff,  — -  as  in  bottomry  or  respondentia  loans  bearing 
maritime  interest.  An  action  both  i7i  rem  and  m  personam 
may  be  brought  where  there  is  a  maritime  lien  upon  the  prop- 
erty, and  at  the  same  time  a  contract  obligation  or  a  claim  for 
damages  against  its  owner  or  possessor,  —  as  in  cases  of  sea- 
man's wages,  pilotage,  towage,  and  collision. 

Rem.  The  procedure  in  admiralty  is  even  more  direct  and 
simple  than  that  in  equity.    The  admiralty  courts  have  no  pre- 


§  394       PROCEDURE   IN  COURTS   OF   ADMIRALTY  437 

scribed  terms  and  vacations,  but  are  always  open  and  ready 
to  take  immediate  cognizance  of  any  case  that  may  arise.  The 
entire  course  of  proceedings  is  of  a  practical  business  character, 
unincumbered  by  technicalities  or  arbitrary  forms,  and  evi- 
dently intended  to  adjust  the  rights  of  all  parties  in  the  most 
available  mcmncr,  and  with  the  least  prcvcntaljle  delay.  The 
prompt,  decisive,  energetic  action  of  these  courts  harmonizes 
well  with  the  avocation  whose  affairs  they  administer,  and  adapts 
the  relief  they  offer  to  the  emergencies  by  which  they  are  con- 
stantly confronted. 

Read  :  Dunlap  on  Admiralty,  pp.  85-94 ; 
2  Conkling  on  Admiralty,  pp.  1-19; 
2  Parsons  on  Shipping  and  Admiralty,  pp.  344-346,  355-360,  368, 

369; 
Henry  on  Admiralty,  §§  14,  15,  107,  132-136; 
Benedict  on  Admiralty,  §§  314-362; 
Hughes  on  Admiralty,  §§  189-191; 
Waples  on  Proceedings  in  Rem,  §§  1-41. 

§  394.     Of  the  Parties  to  Actions  in  Admiralty. 

The  proper  parties  to  an  action  in  admiralty  are  determined 
by  the  nal,ure  of  the  controversy  and  the  form  of  action.  The 
plaintiffs,  or  libellants  as  they  are  called,  are  those  persons 
whose  rights  the  suit  is  intended  to  enforce,  or  whose  wrongs 
it  is  instituted  to  redress.  The  defendant,  called  also  the  re- 
spondent or  libelee,  is  in  an  action  in  rem  the  property  itself,  and 
it  is  not  necessary  to  name  any  person  as  defendant.  In  actions 
in  personam  the  individuals  against  whom  the  plaintiff'  makes 
his  claim  must  be  defendants,  —  as  in  suits  in  equity  and  com- 
mon law.  The  joinder  of  different  causes  of  action  in  the  same 
suit  is  permitted,  unless  disastrous  confusion  would  result. 

Rem.  In  order  to  avoid  a  multiplicity  of  suits  in  cases  where 
several  parties  have  distinct  but  similar  claims,  and  arc  entitled 
to  the  same  relief,  they  may  be  joined  as  libellants ;  and  on  this 
ground  the  master  may  often  sue  on  behalf  of  several  owners  of 
the  ship  and  cargo,  or  of  the  collective  crew.  When,  as  the  suit 
progresses,  it  becomes  apparent  that  additional  parties  must  be 
present  in  order  to  a  complete  settlement  of  the  points  in  con- 
troversy, they  may  hv  cited  in  to  appear;  and  wIktc  third  per- 
sons have  sustained  an  injury  from  the  misconduct  of  several 
others,  and  suit  lias  been  commenced  against  but  one,  the  rest 
may  be  made  parties,  and  damages  may  be  assessed  against  all 
who  are  found  liable. 


438  ELEMENTARY   LAW  §  395 

Read:  Dunlap  on  Admiralty,  pp.  94-101; 
2  Conkling  on  Admiralty,  pp.  22-44; 

2  Parsons  on  Shipping  and  Admiralty,  pp.  223-230,  370-378; 
Cohen  on  Admiralty,  pp.  246-254; 
Henry  on  Admiralty,  §§  108,  118,  119; 
Benedict  on  Admiralty,  §§  363,  364,  380-399. 


§  395.     Of  the  Libel. 

Admiralty  proceedings  are  commenced  by  the  filing  of  the 
libel  or  complaint  in  the  office  of  the  clerk  of  that  maritime 
court  out  of  which  the  process  is  to  issue.  The  libel  must  be 
in  writing;  must  begin  with  the  title  of  the  court;  and  must 
be  addressed  to  the  judge.  It  must  then  state  the  nature  of  the 
cause  of  action  and  allege  it  to  be  a  cause  civil  and  maritime; 
a  cause  of  contract,  or  of  tort  and  damage,  or  of  salvage,  or  of 
possession,  or  whatever  else  the  case  may  be.  If  the  action  is 
in  rem  the  libel  must  also  aver  that  the  property  is  now  mthin 
the  territorial  jurisdiction  of  the  court;  and  if  the  action  is 
in  personam  it  must  set  forth  the  names  and  occupations  and 
places  of  residence  of  the  parties.  Having  done  this,  the  libel 
must  'propound  in  distinct  articles  the  various  facts  upon  which 
the  libellant  relies  to  sustain  his  claims,  so  that  the  defendant 
may  be  able  to  answer  distinctly  and  separately  to  the  several 
matters  contained  in  each  article;  and  must  conclude  with  a 
prayer  for  due  process  to  enforce  his  rights  in  rem  or  in  per- 
sonam as  the  case  requires,  and  for  such  other  relief  as  the  court 
is  able  to  give  in  the  premises.  The  libellant  may  also  call  upon 
the  defendant,  in  the  conclusion  of  his  libel,  to  answer  on  oath 
to  certain  interrogatories,  concerning  the  matters  alleged  in  the 
libel,  which  he  then  propounds.  The  libel  must  be  signed  and 
verified  by  the  oath  of  the  libellant;  and  unless  he  sues  in 
forma  pauperis  it  must  be  accompanied  by  a  stipulation  with 
sureties  for  the  payment  of  costs  in  case  of  an  adverse  decree. 

Rem.  Libels  in  prize  and  seizure  causes,  in  lieu  of  correspond- 
ing statements  in  the  libel  above  described,  must  allege  the 
place  of  capture  and  the  present  location  of  the  property,  and 
pray  for  process  to  issue  to  give  notice  to  all  interested  parties 
to  appear  at  a  day  named,  and  show  cause  why  the  forfeiture 
should  not  be  decreed.  Defects  of  form  in  a  libel  may  be  amended 
at  any  time  on  motion  to  the  court,  as  a  matter  of  course.    De- 


§  396       PROCEDURE   IN   COURTS   OF   ADMIRALTY  439 

feds  of  substance  may  be  amended,  or  new  matter  may  be  added, 
at  any  time  before  final  decree,  upon  such  terms  as  the  court  may 
impose. 

Read:  Dunlap  on  Admiralty,  pp.  111-131; 
2  Conkling  on  Admiralty,  pp.  70-79; 
2  Parsons  on  Sliippin^j;  and  Admiralty,  pp.  379-387; 
Benedict  on  Admiralty,  §§  366,  372-379,  401-416; 
Hughes  on  Admiralty,  §§  192,  193; 
Waples  on  Proceedings  in  Rem,  §§  55-63. 


§  396.     Of  the  Process  in  Admiralty. 

In  actions  in  rem  the  process  must  issue  from  the  court  within 
whose  territorial  jurisdiction  the  res  is  then  located.  This 
process  is  a  warrant  of  arrest,  signed  by  the  clerk  under  the 
seal  of  the  court,  directed  to  the  marshal,  and  instructing  him 
to  seize  the  vessel,  cargo,  or  other  property  to  be  arrested  and 
give  notice  to  all  persons  in  interest  that  on  a  certain  day  the 
matter  will  be  heard  by  the  court  at  a  certain  place,  when  and 
where  they  may  appear,  if  they  will,  and  interpose  their  claims. 
This  warrant  is  served  by  the  marshal  by  taking  the  property 
into  his  possession,  posting  one  notice  of  his  doings  and  the 
citation  to  the  interested  parties  on  the  court-room  door,  attach- 
ing another  notice  to  the  property,  and  publishing  a  third  in 
such  newspaper  as  the  court  directs;  placing  the  property  in 
the  meantime  in  the  hands  of  a  keeper.  Where  the  property  is 
perishable  the  court,  on  the  application  of  either  party,  may 
order  its  sale,  or  its  delivery  to  the  claimant  on  his  deposit  of 
its  estimated  value,  or  its  release  upon  an  adequate  security. 
When  property  incidental  to  the  property  seized  is  in  the  posses- 
sion of  third  persons,  under  an  apparent  right,  a  monition 
may  be  issued  to  them  by  the  court  commanding  them  to  show 
cause  why  it  should  not  be  delivered  to  the  marshal,  and  upon 
the  hearing  the  court  may  make  such  order  as  law  and  justice 
may  require.  In  actions  in  personam  the  process  may  issue 
from  any  court  which  has  jurisdiction  over  the  person  of  the 
defendant,  and  may  be  a  monition  or  summons  to  the  defendant 
to  appear  and  answer,  on  a  simple  warrant  of  arrest  against 
his  person,  or  a  warrant  of  arrest  coupled  with  a  clause  providing 
that  if  the  defendant  cannot  be  found  his  goods  and  chattels 
or,  if  these  are  wanting,  his  credits  and  effects  shall  be  attached. 


440  ELEMENTARY  LAW  §  397 

This  process  is  served  according  to  its  precept  in  the  same  man- 
ner as  in  suits  at  common  law. 

Rem.  When  a  defendant  is  arrested  on  admiralty  process  he 
may  be  enlarged  on  bail,  conditioned  that  he  will  appear  and 
abide  the  orders  and  decrees  of  the  court.  When  property  is ' 
attached  it  may  be  released  upon  the  substitution  of  a  bond 
with  similar  conditions.  If  effects  and  credits  are  concealed  in 
the  hands  of  a  garnishee,  he  may  be  cited  in  to  disclose  on  oath ; 
and  if  he  admits  the  claim  he  will  be  held  responsible  for  the 
property  by  the  court.  These  bonds  and  stipulations  are  under 
the  continual  control  of  the  court,  and  may  be  reduced  or  in- 
creased by  it  as  the  exigencies  of  the  case  demand.  In  actions 
in  personam,  involving  an  amount  of  not  more  than  five  hundred 
dollars,  no  warrant  for  the  arrest  of  the  defendant  or  for  the 
attachment  of  his  property  can  issue  without  the  special  order 
of  the  court ;  and  when  the  State  in  which  the  court  is  held 
has  abolished  imprisonment  in  certain  civil  cases,  no  arrest 
can  be  made  in  similar  cases  in  the  admiralty  courts. 
Read:  Dunlap  on  Admiralty,  pp.  132-178; 

2  Conkling  on  Admiralty,  pp.  80-172; 

2  Parsons  on  Shipping  and  Admiralty,  pp.  388-399,  406-419; 

Cohen  on  Admiralty,  pp.  262-265; 

Henry  on  Admiralty,  §§  115,  116,  121-129; 

Benedict  on  Admiralty,  §§  417-448; 

Hughes  on  Admiralty,  §§  194,  199; 

Waples  on  Proceedings  in  Rem,  §§  42-54,  64-72. 

§  397.     Of  the  Appearance  of  Parties  and  Interveners. 

The  libellant  must  appear  on  the  return  day  to  prosecute 
his  suit,  or  it  may  be  adjudged  against  him  on  default,  and 
dismissed  with  costs.  If  the  libellant  appears  and  the  defendant 
makes  default,  or  if  the  defendant  appears  and  fails  to  answer, 
or  if  in  a  suit  in  rem  no  claimant  of  the  property  intervenes,  the 
libel  may  be  taken  pro  conjesso,  and  the  cause  will  then  be 
heard  ex  parte  and  be  decided  as  the  court  deems  just  upon 
the  testimony  offered  by  the  libellant.  When  the  defendant 
is  defaulted  the  court  may  open  the  default,  for  just  reasons, 
at  any  time  within  a  prescribed  period  after  the  decree  against 
him  has  been  entered.  Upon  the  appearance  of  the  defendant 
in  an  action  in  personam  the  court  may  recjuire  him  to  give  a 
stipulation,  with  sureties,  to  pay  whatever  costs  and  expenses 
may  be  adjudged  against  him  in  the  suit,  unless  bail  has  been 
already  taken  or  property  has  been  attached. 


§  398       PROCEDURE   IN  COURTS   OF  ADMIRALTY  441 

Rem.  In  actions  in  rem,  any  person  who  has  an  interest  in 
the  property  seized  may  intervene,  and  apjiear  to  be  heard  for 
his  own  protection.  In  making  his  appearance  he  must  file  a 
petition  setting  forth  his  interest  in  suitable  allegations,  and 
give  a  stipulation,  with  sureties,  to  abide  the  final  decree  in  the 
cause,  and  pay  whatever  damages  and  costs  may  be  awarded 
against  him.  To  these  allegations  the  other  parties  to  the  suit 
may  be  compelled  to  make  due  answer,  and  thereupon  such 
further  proceedings  will  be  had  as  the  issues  created  by  these 
pleadings  may  re({uire.  If  the  intervenor  asserts  himself  to  be 
the  owner  of  the  property,  or  the  agent  of  the  owner  making 
the  claim  on  his  behalf,  he  must  verify  the  assertion  by  oath 
or  affirmation.  The  same  right  to  intervene  exists  where  the 
property  seized  has  been  sold,  and  the  proceeds  of  the  sale  have 
been  paid  into  the  registry  of  the  court  for  distribution  among 
the  claimants  as  their  interests  may  appear. 

Read:  1  Conklinf^  on  Admiralty,  pp.  48-72; 
2  Conkling;  on  Admiralty,  pp.  173-211 ; 
2  Parsons  on  Shipping  and  Admiralty,  pp.  400-406; 
Cohen  on  Admiralty,  pp.  254-257; 
Henry  on  Admiralty,  §  120; 

Benedict  on  Admiralty,  §§  365,  449-460,  489-502; 
Waples  on  Proceedings  in  Rem,  §§  73-77,  82-89. 

§  398.     Of  the  Pleadings  in  Admiralty. 

The  pleadings  in  admiralty,  subsecjucnt  to  the  libel,  pro- 
ceed from  the  defendant,  and  consist  either  in  objections  to 
the  legal  form  or  substance  of  the  libel,  or  in  a  denial  or  a  con- 
fession and  avoidance  of  its  allegations  of  fact.  Objections  to 
the  legal  sufficiency  of  the  libel  are  made  by  exceptions,  which 
correspond  to  a  demurrer  at  common  law,  and  which,  if  sus- 
tained, result  in  the  amendment  of  the  libel  when  it  can  be 
amended,  upon  such  terms  as  the  court  may  impose.  A  denial 
or  a  confession  and  avoidance  of  the  allegations  of  the  libel 
is  made  by  an  answer  upon  oath  or  affirmation,  in  which  the 
defendant  must  reply  fully  and  explicitly  to  the  separate  articles 
of  the  libel  in  the  same  order  in  which  they  are  set  forth  in  the 
libel  itself;  and  so  far  as  he  is  ai)le  he  must  also  respond  in 
the  same  manner  to  any  interrogatories  which  the  libel  may 
contain.  If  the  answer  is  not  full  and  explicit,  in  reference  to 
all  the  allegations  of  the  bill,  it  may  be  excepted  to  by  the  libel- 
lant,  and  the  defendant  may  then  be  compelled  by  an  attach- 
ment to  make  further  answer,  or  the  matter  excepted  to  may 


442  ELEMENTARY  LAW  §  399 

be  decreed  'pro  conjesso  against  him.  This  rule  does  not,  how- 
ever, oblige  a  defendant  to  disclose  under  oath  any  facts  which 
would  subject  him  to  a  prosecution,  penalty,  or  forfeiture  for 
any  criminal  offence.  The  defendant  in  his  answer  may  set 
up  new  matter  in  defence,  and  in  aid  thereof  may  propound 
interrogatories  to  the  libellant,  requiring  him  to  reply  to  them 
under  oath,  or  in  default  of  such  reply  to  submit  to  the  dis- 
missal of  his  libel  or  to  the  decision  of  the  subject-matter  of 
the  interrogatory  in  favor  of  the  defendant.  Where  the  defendant 
has  a  cou7iter-claim,  arising  out  of  the  same  cause  of  action  for 
which  the  original  libel  was  filed,  he  may  present  it  in  a  cross- 
libel,  to  which  the  libellant  must  answer  as  if  he  were  himself 
a  defendant,  and  give  the  same  security  for  damages  and  costs 
as  if  the  action  had  been  separately  brought. 

Rem.  In  admiralty  proceedings  there  is  no  repHcation, 
general  or  special,  except  in  some  peculiar  cases,  and  then  only 
by  permission  of  the  court.  The  allegations  of  the  answer  are 
met  by  amending  the  libel  so  far  as  may  be  necessary  to  put  all 
the  facts  in  issue ;  and  if  this  amendment  of  the  libel  introduces 
additional  new  matter  an  amendment  of  the  answer  may  be 
made  to  meet  it. 

Read:  Dunlap  on  Admiralty,  pp.  179-196; 

2  Conkling  on  Admiralty,  pp.  20-22,  212-269,  441-443; 

2  Parsons  on  Shipping  and  Admiralty,  pp.  361-363,  420-434,  484- 

486; 
Cohen  on  Admiralty,  pp.  257-262; 
Henry  on  Admiralty,  §  109 ; 

Benedict  on  Admiralty,  §§  367-371,  461-488,  593-599,  604-606  o; 
Hughes  on  Admiralty,  §§  195,  196,  200-202; 
Waples  on  Proceedings  in  Rem,  §§  78-81. 

§  399.     Of  the  Trial,  Judgment,  and  Decree. 

When  the  pleadings  are  closed  the  case  is  assigned  for  trial 
at  the  convenience  of  the  parties  and  the  court.  The  trial  is 
conducted  by  the  judge  alone  without  a  jury,  and  the  evidence 
is  presented  either  orally,  or  by  depositions,  or  in  the  report  of 
a  commissioner  by  whom  the  testimony  has  been  heard  in  pur- 
suance of  an  order  of  the  court.  If  the  decision  is  in  favor  of 
the  libellant,  and  the  amount  of  damages  to  be  awarded  re- 
quires further  computation,  the  matter  is  referred  to  a  com- 
missioner who  makes  the  necessary  investigation  and  returns 


§  399       PROCEDURE   IN   COURTS   OF   ADMIRALTY  443 

his  finding  to  the  court;  where  it  may  be  excepted  to  by  either 
party  and  recommitted  for  correction,  or  be  adopted  by  the 
judge  and  made  the  basis  of  his  decree.  In  actions  in  per- 
sonam a  decree  for  the  Hbcllant  awards  to  him  the  damages 
arising  from  the  tort  or  breach  of  contract  of  which  he  com- 
plains, with  or  without  costs  as  the  court  may  determine  in 
view  of  his  fairness  and  good  faith  in  the  institution  of  the  suit. 
In  actions  in  rem  a  decree  for  the  hbellant  determines  the  charac- 
ter and  value  of  his  rights  in  the  property  seized,  and  if  the 
property  is  still  in  the  possession  of  the  court  orders  it  to  be  ad- 
vertised and  sold,  and  payment  to  be  made.  A  decree  in  favor 
of  the  defendant,  in  either  form  of  action,  dismisses  the  libel 
and  awards  him  costs  at  the  discretion  of  the  court. 

Rem.  An  appeal  from  a  decree  in  admiralty,  in  the  District 
Court  of  the  United  States,  lies  to  the  Circuit  Cour  ^  -  jpeals 
upon  the  petition  of  the  defeated  party.  This  petition  is  filed 
in  the  District  Court ;  is  addressed  to  the  judges  of  the  appellate 
court;  assigns  the  errors  complained  of;  and  prays  for  the 
allowance  of  an  appeal,  "^rhe  appeal  being  allowed  by  the 
judge,  a  citation  issues  to  the  adverse  party  directing  him  to 
appear  at  a  day  named  in  the  appellate  court,  and  answer  to 
the  appeal.  The  clerk  of  the  District  Court  thereupon  trans- 
mits to  the  clerk  of  the  ap|)ellate  court  a  certified  copy  of  the 
entire  record  of  the  case  in  the  lower  court ;  which  copy  being 
filed  and  entered  on  the  docket  of  the  higher  court  brings  the 
case  within  its  jurisdiction.  Upon  the  hearing  on  the  appeal 
new  evidence  may  be  introduced  by  permission  of  the  court, 
and  when  the  hearing  is  concluded  the  case  is  remanded  by 
the  appellate  court  to  the  lower  court,  with  instructions  as  to 
the  character  of  the  final  decree.  In  cases  where  the  appellate 
court  desires  the  advice  of  the  Supreme  Court  of  the  United 
States,  upon  any  question,  it  may  certify  the  question  to  that 
tribunal  for  a  decision ;  or  the  Supreme  Court  itself,  in  cases 
which  it  deems  sufficiently  important,  may  bring  the  cause 
before  it  for  review  by  a  urit  of  certiorari. 

Read:  Dunlap  on  Admiralty,  pp.  197-280; 
2  ConklinR  on  Aflmiralty,  pp.  270-429; 
2  Parsons  on  Shipping  and  Admiralty,  pp.  204-217,  435-457,  479- 

483,  487-493; 
Cohen  on  Atlmiralty,  p.  200; 
Henry  on  Admiralty,  §§  113.  1.30,  131,  137-162; 
Benedict  on  Admiralty,  §§  51.3-554; 
Hughes  on  Admiralty,  §§  197,  198,  206-209; 
Waples  on  Proceedings  in  Rem,  §§  90-120. 


444  ELEMENTARY  LAW  §  400 

§  400.     Of  the  Enforcement  and  Conclusiveness  of  Decrees  in 
Admiralty. 

A  decree  in  admiralty  in  an  action  in  personam,  when  in 
favor  of  the  hbellant,  is  enforced  by  an  execution  in  the  nature 
of  a  fieri  facias,  commanding  the  marshal  to  levy  on  the  goods 
and  chattels,  or  the  lands  and  tenements,  of  the  defendant  to 
satisfy  the  claim.  In  enforcing  a  decree  in  favor  of  the  libel- 
lant  in  an  action  in  rem  the  marshal  sells  the  property  seized 
and  collects  the  proceeds  and  deposits  them  in  the  registry  of 
the  court,  from  whence  they  are  paid  out  to  the  parties  entitled 
to  receive  them.  If  the  property  has  been  released  before  decree 
upon  a  stipulation,  the  decree  will  run  against  the  parties  to 
the  stipulation,  and  is  enforced  by  a  writ  of  fieri  facias.  If  the 
property  has  been  already  sold,  the  decree  apportions  the  pro- 
ceeds in  the  registry.  The  final  decree  of  an  admiralty  court  in 
an  action  in  personam  is  binding  upon  the  parties  to  the  action 
and  their  privies,  in  reference  to  the  question  raised  and  decided 
in  the  suit,  in  the  same  manner  as  are  judgments  at  common 
law  or  equity.  Admiralty  courts,  being  tribunals  acting  under 
the  law  of  nations,  their  existence  and  seals  are  matters  of 
judicial  notice  in  all  foreign  courts,  and  their  records  cannot 
be  attacked  except  for  fraud  or  want  of  jurisdiction.  A  final 
decree  in  an  action  in  rem.  therefore  prevails,  so  far  as  the  liability 
of  the  property  arrested  is  concerned,  against  all  the  world. 
The  arrest  gives  constructive  notice  to  all  persons  interested  to 
appear  and  be  heard,  wherever  they  may  be;  and  though  they 
are  not  thereby  made  defendants,  but  remain  merely  claim- 
ants with  a  right  to  intervene,  a  decree  against  the  property 
subjects  their  interests  in  it  finally  and  absolutely  to  the  order  of 
the  court.  Hence  a  sale  of  the  property  in  pursuance  of  such  de- 
cree devests  the  interests  not  only  of  those  who  did  appear,  but 
of  all  who  had  a  right  to  appear,  and  as  against  them  creates 
an  indefeasable  title  in  the  purchaser.  A  decree  in  rem,  how- 
ever, is  not  a  judgment  against  the  persons  or  the  other  prop- 
erty of  the  claimants,  nor  does  it  impose  even  upon  those  who 
appear  any  liability  beyond  their  interest  in  the  arrested  prop- 
erty and  that  assumed  by  them  in  their  respective  stipulations. 

Rem.  Under  the  "Limited  Liability  Acts"  the  amount  of 
damages  recoverable  in  certain  cases  is  restricted  to  the  value 


§  401  COURTS   OF   PROBATE  445 

of  the  property  through  whose  instrumentaHty  the  injury  is 
caused.  Thus  the  owner  of  a  vessel  against  whom  any  claim 
is  made  for  the  loss  of  property  shipped  on  board  his  vessel, 
or  for  damage  caused  by  a  collision  or  other  accident  without 
his  privity  or  knowledge,  may  take  advantage  of  these  Acts 
cither  in  his  answer  to  a  libel  already  filed,  or  by  petition  against 
the  claimant  before  any  action  is  commenced,  by  stating  the 
facts  which  bring  him  within  the  exemptions  of  the  Statutes 
and  praying  for  the  prescribed  relief.  13y  order  of  the  court 
an  appraisal  is  then  made  of  his  interest  in  the  guilty  vessel, 
and  upon  his  ])ayment  of  its  value  into  the  registry,  or  the  trans- 
fer of  his  interest  to  a  trustee  for  the  benefit  of  all  concerned, 
a  mandate  issues  restraining  the  claimants  from  pursuing  any 
other  remedy  in  respect  to  these  claims,  and  directing  them  to 
make  proof  of  such  claims  before  a  designated  commissioner 
within  a  certain  time.  Any  claimant,  whose  claim  is  thus  pre- 
sented to  the  commissioner  under  oath,  may  defend  against  the 
allegations  of  the  answer  or  the  prayer  of  the  petition.  If  the 
petition  is  sustained  the  claims  allowed  by  the  commissioner 
receive  a  'pro  rata  dividend  from  the  sum  paid  into  the  registry, 
or  from  the  proceeds  of  the  sale  made  by  tlie  trustee,  subject 
to  the  rules  determining  the  priority  of  claims;  and  the  owner 
is  thenceforth  secure  from  action  on  the  claims  either  in  the 
common  law  or  the  admiralty  courts. 

Read  :  2  Conklinp;  on  Admiralty,  pp.  430—440 ; 

1  Parsons  on  Shipping  and  Admiralty,  pp.  74-78; 

2  Parsons  on  Shipping  and  Admiralty,  pp.  120-140,  231-235,  338- 
343,  494,  495; 

Henry  on  Admiralty,  §§  94-106,  111,  112; 
Benedict  on  Admiralty,  §§  585-592; 
Hughes  on  Admiralty,  §§  160-174,  203-205; 
Waples  on  Proceedings  in  Rem,  §§  121-139; 
Spencer  on  Marine  Collisions,  §§  187-234. 


SECTIOxN  VII 

OF    THE     COURTS    OF    PROBATE 

§  401.     Of  the  Origin  and  Purpose  of  Courts  of  Probate. 

Courts  of  probate  are  tribunals  clothed  with  special  powers, 
particularly  with  reference  to  the  settlement  of  estates  of  de- 
ceased persons.  In  England  these  courts  were  originally 
ecclesiastical  tribunals,  presided  over  by  the  ordinary  or  bishop 
of  the  diocese.  In  this  country  they  are  statutory  courts,  and 
generally  discharge  the  functions  of  courts  of  equity,   courts 


446  ELEMENTARY  LAW  §  402 

of  common  law,  and  ecclesiastical  courts,  concerning  matters 
within  their  jurisdiction.  In  their  procedure  they  observe 
the  usages  and  customs  which  experience  has  shown  to  be  the 
most  convenient.  They  are  known  in  different  States  as  "or- 
pka7is  courts";  "registers'  courts";  "surrogates'  courts,"  etc.; 
and  in  their  details  are  controlled  by  local  law. 

Rem.  From  the  Norman  Conquest  until  the  passage  of  the 
Statute  of  Wills  (a.  d.  1541),  legal  estates  of  inheritance  in 
lands  were  with  few  exceptions  undevisable,  but  descended  to 
the  heirs  designated  by  the  feudal  law.  The  owner  of  personal 
property,  however,  could  dispose  of  the  whole  or  a  part  thereof 
by  will,  and  if  he  failed  to  do  this  it  vested  in  the  king  who  gave 
it  to  the  ordinary  for  pious  uses.  By  the  Statute  of  Westminster 
the  Second  (a.  d.  1285)  the  ordinary  was  directed  to  pay  the 
debts  of  the  deceased  out  of  the  funds  thus  transferred  to  him; 
and  by  the  Act  31  Edw.  Ill  (a.  d.  1358)  he  was  further  ordered 
to  appoint  the  next  of  kin  of  the  deceased  as  administrator  of 
the  estate,  to  act  under  his  supervision.  Later  statutes  provided 
that  the  surplus  remaining  after  the  debts  were  paid  should  be 
delivered  to  the  heirs  or  other  representatives  of  the  deceased. 
All  these  proceedings  were  conducted  in  the  court  presided 
over  by  the  ordinary,  which  thus  obtained  jurisdiction  over  the 
settlement  of  intestate  personal  estates.  The  necessity  of  deter- 
mining whether  or  not  a  will  of  the  personalty  had  been  made 
by  the  deceased,  in  order  to  ascertain  what  right  the  ordinary 
might  have  to  the  estate,  naturally  drew  after  it  the  general 
cognizance  of  testate  personal  property;  and  when  wills  of  real 
property  were  authorized  in  a.  d.  1541  jurisdiction  over  these 
also  was  necessarily  exercised  by  the  same  tribunals.  This 
condition  of  affairs  continued  in  England  until  A.  D.  1857,  when 
Parliament  created  a  secular  court,  on  which  authority  over  all 
probate  matters  was  conferred. 

Read:  Rice  on  American  Probate  Law,  pp.  1-21,  25-28; 

Croswell  on  Executors  and  Administrators,  §§  1-11; 

Woerner  on  American  Administra'tion  Law,  §§  137-144; 

Schouler  on  Executors  and  Administrators,  §§  10-20; 

Thornton  on  Lost  Wills,  §§  1-16; 

Bolles,  Important  English  Statutes,  p.  15,  Stat.  Westminster  the 
Second,  requiring  the  Ordinary  to  pay  Debts;  p.  21,  Act  Edw.  Ill, 
requiring  appointment  of  Administrators;  p.  91,  Statute  of  Dia- 
tributions;  p.  131,  Thelluson's  Act,  against  Accumulations. 

§  402.     Of  Probate  Jurisdiction  over  Testate  Estates. 

A  testate  estate  is  one  of  which  the  former  owner,  now  de- 
ceased, has    made  a  final    disposition    by  a  valid  will.    Any 


§  402    PROCEDURE  IN  COURTS  OF  PROBATE     447 

instrument  of  a  testamentary  character,  whatever  be  its  form, 
is  for  probate  purposes  a  vaHd  will  if  it  complies  with  the  re- 
quirements of  the  law  concerning  the  capacity  of  the  testator 
and  its  mode  of  execution.  The  title  of  the  legatees  and 
devisees  to  the  property  rests  on  the  will,  but  cannot  be  secure 
against  the  claims  of  heirs  and  creditors  unless  the  estate  is 
duly  settled  by  a  court  of  probate.  To  such  a  court  the  will 
must  be  presented  by  the  executor  or  other  person  in  whose 
custody  it  may  be,  and  if  the  presentation  is  not  made  within 
due  time  any  interested  party  may  apply  to  the  court  for  a 
citation  against  the  supposed  possessor  of  the  will,  ordering 
him  to  appear  and  offer  it  for  probate;  and  this  order  may 
be  enforced  when  necessary  by  an  attachment  for  contempt. 
After  the  will  is  admitted  to  probate  the  executor  proceeds  to 
settle  the  estate  according  to  its  directions.  If  the  will  is  de- 
nied probate  an  administrator  is  appointed,  and  the  estate 
is  settled  as  an  intestate  estate.  The  court  of  probate  before 
which  the  primary  'probate  of  a  will  must  be  made  is  that  w  ithin 
whose  territorial  jurisdiction  the  testator  had  his  domicile  at 
the  time  of  his  death,  though  an  auxiliary  probate  may  be 
made  wherever  the  local  law  of  the  place  in  which  any  of  the 
property  belonging  to  the  estate  is  situated  may  require  it. 
From  a  decree  of  probate  admitting  or  rejecting  a  will  an  ap- 
peal generally  lies  to  some  superior  tribunal. 

Rem.  A  will  may  be  probated  either  in  the  common  or  the 
solemn  form.  A  probate  in  common  form  is  usually  adopted 
where  the  will  is  undisputed ;  and  consists  in  the  verification 
of  the  will  by  one  or  more  of  the  subscribing  witnesses,  after 
such  notice  to  the  parties  as  the  law  or  the  discretion  of  the 
court  requires.  A  probate  in  solemn  form  is  made  where  the 
will  is  contested ;  and  involves  a  trial  to  which  all  parties  in 
interest  are  summoned  and  all  the  subscribing  witnes.ses  are 
brought  by  the  proponent  of  the  will,  if  f)ossible,  or  their  ab- 
sence is  satisfactorily  accounted  for,  and  their  signatures  proved 
by  secondary  evidence. 

Read:  2  Bl.  Com.,  p.  508; 

3  Redfield  on  Wills,  pp.  3-18,  36-56,  65,  126-128; 
Rice  on  American  Probate  Law,  pp.  36-40,  50-88,  137,  248-314; 
Croswell  on  Executors  and  Administrators,  §  70; 
Croswell's  Handbook  on  Executors  and  Administrators,  §§  4,  5; 
Woerner  on  American  Administration  Law,  §§  7-11,  199-202,  214- 
228; 


448  ELEMENTARY  LAW  §  403 

Schouler  on  Executors  and  Administrators,  §§  1-9,  53-89  a; 
Page  on  Wills,  §§  312-317,  320-339,  347-358,  428-455; 
2  Greenleaf  on  Evidence,  §§  666-695; 
Thornton  on  Lost  Wills,  §§  17-130. 


§  403.     Of  Probate  Jurisdiction  over  Intestate  Estates. 

In  an  intestate  estate  lands  held  in  fee  descend  to  the  heirs  at 
law  immediately  upon  the  death  of  the  former  owner,  while 
the  personal  property  devolves  upon  the  distributees  designated 
by  the  statutes  of  the  State,  subject  to  the  rights  of  creditors. 
Where  there  are  no  creditors,  and  no  transfer  of  record  is  neces- 
sary to  perfect  their  title,  the  distributees  may  divide  the  per- 
sonal property,  and  the  heirs  the  real,  among  themselves  without 
the  aid  of  a  court  of  probate;  but  such  private  settlements  are 
never  final  except  against  the  parties  by  whom  they  are  made. 
Hence  in  all  cases  of  intestate  estates  settlement  by  a  court  of 
probate  is  advisable,  as  in  most  of  them  it  is  indispensable.  The 
'primary  jurisdiction  over  intestate  estates  resides  in  that  court 
of  probate  within  whose  district  the  intestate  was  domiciled 
at  the  time  of  his  death;  and  to  this  court  any  distributee, 
creditor,  or  other  interested  party  may  apply  for  the  appoint- 
ment of  an  administrator.  The  applicatio7i,  if  required  by  the 
local  law  to  be  in  writing,  should  set  forth  the  name  and  domicile 
of  the  decedent,  his  death  intestate,  his  ownership  of  the  estate 
and  the  interest  of  the  applicant,  and  pray  that  letters  of  ad- 
ministration may  issue  to  himself  or  to  some  other  proper  person. 
After  due  notice  to  all  other  persons  who  have  a  right  to  be 
heard  an  administrator  is  appointed,  and  clothed  with  due 
authority  to  settle  the  estate. 

Rem.  The  grant  of  administration  upon  the  intestate  estate 
of  a  person  supposed  to  be  dead,  but  actually  living,  is  in  most 
States  wholly  void.  Administration  upon  a  testate  estate,  where 
no  will  has  yet  been  discovered,  is  effectual  until  the  will  is 
found  and  probated,  but  is  then  vacated  except  as  to  past  acts 
of  the  administrator  which  it  would  also  have  been  the  duty  of 
the  executor  to  perform.  An  unlawful  appointment  may  be  re- 
voked by  the  court  at  any  time  for  cause  shown. 

Read:  3  Redfield  on  Wills,  pp.  19-35; 

Rice  on  American  Probate  Law,  pp.  21-25,  28-35; 
Croswell  on  Executors  and  Administrators,  §§  26,  35-70; 


§  404         PROCEDURE   IN   COURTS   OF   PROBATE  449 

Croswell's  Handbook  on  Executors  and  Administrators,  §§  6-9,  11, 

14-17; 
Woerner  on  American  Administration  Law,  §§  150-156,  204-213; 
Schouler  on  Executors  and  Administrators,  §§  1  a,  21-29  a. 

§  404.     Of  Executors  and  Administrators. 

The  executor  named  in  the  will  must  be  recognized  by  the 
court  as  such,  if  he  is  a  suitable  person.  He  is  not,  however, 
obHged  to  accept  tlie  office  nor  to  retain  it  if  lie  does  accept,  but 
may  appear  and  present  the  will,  and  then  decline  further 
service.  In  such  a  case,  unless  the  will  provides  for  his  suc- 
cessor, an  administrator  must  be  appointed  by  the  court.  Ad- 
ministrators are  of  seven  classes:  (1)  Ordinary  administrators, 
appointed  at  the  outset  to  settle  intestate  estates;  (2)  Ad- 
ministrators  cum  testamento  annexo,  appointed  to  settle  tes- 
tate estates  upon  the  declination,  resignation,  removal,  or  death 
of  an  executor;  (3)  Administrators  de  bonis  non,  appointed 
to  complete  the  settlement  of  an  estate  already  partly  adminis- 
tered; (4)  Administrators  ad  colligendum,  appointed  to  collect 
and  hold  the  assets  of  the  estate,  like  a  receiver,  where  de- 
lay in  commencing  regular  probate  proceedings  is  inevitable ; 
(5)  Administrators  durante  minoritate,  appointed  to  act  until 
the  rightful  executor  or  administrator  becomes  of  age;  ((i)  Ad- 
ministrators durante  absentia,  aj)pointed  to  act  during  tiie  absence 
from  the  country  of  the  executor  or  rightful  administrator; 
(7)  Administrators  pendente  lite,  appointed  to  act  pending  an 
appeal  from  a  decree  of  probate  rejecting  a  will.  Every  ad- 
ministrator, before  entering  on  his  duties,  must  give  a  bond 
with  surety  for  their  faithful  performance;  and  the  same  rule 
applies  to  an  executor  unless  he  is  exempted  by  the  will,  and 
even  then  if  in  the  judgment  of  the  court  the  interests  of  credit- 
ors require  such  protection. 

Rem.  In  selecting  administrators  the  law  generally  obliges 
the  court  to  prefer  the  nr.rf  of  kin  to  the  deceased;  and,  among 
these,  males  rather  than  fV-males,  the  elder  ratlier  than  the 
younger,  and  persons  experience(j  in  business  matters  to  per- 
sons without  experience.  A  surviving  wife  usually  has  the  right 
to  administer  upon  the  estate  of  her  deceased  husl)an<l.  and  the 
husl)and  upon  that  of  his  deceased  wife.  If  no  suitable  person 
can  be  found  among  the  next  of  kin,  a  creditor  or  an  indifferent 

29 


450  ELEMENTARY   LAW  §  405 

person  may  be  chosen.  In  some  States  an  officer,  known  as  the 
public  administrator,  is  provided  by  the  local  law  to  act  in  cases 
where  no  proper  next  of  kin  or  creditor  exists. 

Read:  2  Bl.  Com.,  pp.  503-506; 

2  Kent  Com.,  Lect.  xxxvii,  pp.  408-414; 
Walker,  American  Law,  §§  126-128; 
Metcalf  on  Contracts,  pp.  161-177; 

3  Redfield  on  Wills,  pp.  66-114,  222-225,  240-243; 

Rice  on  American  Probate  Law,  pp.  88-97,  315-339,  345-350; 
Croswell   on   Executors  and   Administrators,    §§  71-249,   260-309, 

581-592,  724-734; 
Croswell's  Handbook  on  Executors  and  Administrators,  §§  1,  2,  18' 

55,  57-64,  78-90,  181-184; 
Woerner  on  American  Administration  Law,  §§  170-198,  229-260; 
Schouler  on  Executors  and  Administrators,  §§  30-52,  90-149,  184- 

197  a. 


§  406.     Of  the  Settlement  of  Decedents'  Estates. 

Subject  to  the  provisions  of  the  will,  when  one  exists,  the 
duties  of  executors  and  administrators  are  substantially  the 
same.  The  first  step  is  the  collection,  inventory,  and  appraisal 
of  the  property  belonging  to  the  estate.  For  the  purpose  of 
collecting  the  assets  the  administrator  may  sue  at  law  or  equity, 
sell  the  personal  property,  and  compromise  doubtful  claims. 
In  the  inventory  he  must  enumerate  all  the  articles  of  property 
belonging  to  the  estate  according  to  his  best  information;  mis- 
takes therein  being  corrected  by  future  subtractions  or  additions. 
In  the  appraisal  he  is  usually  assisted  by  disinterested  appraisers 
appointed  by  the  court,  whose  estimate  is  accepted  as  the  prima 
facie  value  of  the  property  for  guidance  in  the  residue  of  the 
proceedings.  Upon  the  filing  of  the  inventory  and  appraisal 
in  the  court,  if  it  is  apparent  that  the  assets  are  amply  sufficient 
to  pay  all  the  debts  and  charges  the  estate  is  settled  as  a  solvent 
estate.  If  it  is  doubtful  whether  the  estate  is  solvent,  or  if  there 
is  a  large  number  of  disputed  claims  against  it,  the  administra- 
tor may  disclose  the  condition  of  the  estate  to  the  court,  and 
take  an  order  for  its  settlement  as  an  insolvent  estate.  In 
settling  a  solvent  estate  the  administrator  first  gives  notice  to 
the  creditors  to  present  their  claims  within  a  limited  time,  and 
those  not  thus  presented  are  barred  from  sharing  in  the  estate. 
The  claims  approved  by  the  administrator  may  be  paid  at  any 
time  by  him,  and  when  the  'imited  period  has  expired  he  sub- 


§  405         PROCEDURE    IN  COURTS   OF  PROBATE  451 

mits  to  the  court  an  account  of  his  receipts,  expenditures,  and 
Habilities,  and  prays  for  an  order  to  Uquidate  the  remaining 
claims  and  distribute  the  surphis  of  the  estate  to  those  who  are 
legally  entitled  to  it.  Upon  the  correctness  of  this  account  all 
parties  in  interest  have  a  right  to  be  heard,  and  it  may  be  ac- 
cepted, rejected,  or  amended  as  the  facts  may  warrant.  If  the 
account  is  accepted  the  order  prayed  for  is  granted,  the  recog- 
nized claims  are  paid,  and  the  residue  is  distributed.  Creditors 
whose  claims  are  disallowed  by  the  account  may  then  sue  the 
estate,  which  they  are  not  usually  allowed  to  do  during  the 
investigations  of  the  administrator.  In  settling  an  insolvent 
estate  commissioners  are  first  appointed  by  the  court  to  receive 
and  pass  upon  the  claims,  and  creditors  are  notified  to  present 
their  claims  to  them,  duly  verified,  within  a  prescribed  time. 
These  commissioners  sit  as  a  court  adjudicating  between  the 
claimants  and  all  other  persons  interested  in  the  estate;  and 
their  decisions  expressed  in  their  report  to  the  court  are  binding 
on  all  parties,  and  unless  appealed  from  are  final.  When  the 
report  of  the  commissioners  is  perfected  and  accepted  by  the 
court  a  dividend  of  the  estate  pro  rata  among  the  claimants  is 
ordered,  according  to  their  legal  priority;  the  expenses  of  the 
last  illness  and  funeral  of  the  deceased,  and  debts  due  the  State 
ordinarily  taking  the  precedence,  and  other  debts  being  pre- 
ferred or  not  as  determined  by  the  local  law.  When  this  order 
has  been  complied  with  the  administrator  files  his  final  account, 
and  the  estate  is  closed. 

Rem.  Intercurrently  with  the  regular  proceedings  above  de- 
scribed the  circumstances  of  particular  estates  require  pro- 
ceedings of  a  special  character.  Thus  where  a  \\-idow  has  an 
election  between  her  dower  and  some  provision  made  in  lieu 
thereof,  she  must  exercise  it  with  the  sanction  of  the  court  when 
the  inventory  is  filed,  in  order  that  the  administrator  may  know 
what  assets  will  remain  to  meet  the  claims  of  creditors.  Where 
a  dependent  fainili/  must  he  supported  during  the  settlement  of 
the  estate,  an  allowance  for  that  purpose  must  be  made  by  the 
court  as  soon  as  the  amount  of  the  estate,  and  the  probable 
claims  agaiiist  it,  can  be  ascertained.  Where  the  personal  prop- 
erty is  not  sufficient  to  pay  debts  and  expenses,  the  court  may 
order  a  sale  of  the  realtj/  to  such  an  amount  as  will  make  up  the 
deficiency.      Where   personal   ])roperty   is   situated   in    another 


452  ELEMENTARY   LAW  §  406 

State,  in  which  also  creditors  of  the  estate  reside,  the  adminis- 
trator must  apply  to  the  probate  court  in  that  locahty  for  ancil- 
lary admmistration,  and  having  there  settled  that  portion  of  the 
estate,  as  to  the  local  creditors,  remove  the  balance  to  the  pri- 
mary probate  district  for  final  distribution.  Where  a  probated 
will  disposes  of  real  property  in  another  State,  an  ancillary 
-probate  in  that  State  is  necessary  to  perfect  the  title  of  the 
devisees  upon  the  record,  and  give  constructive  notice  of  their 
ownership.  Pending  the  settlement  of  the  estate,  whatever 
other  acts  may  be  required  for  its  protection  the  administrator 
must  faithfully  perform  under  the  supervision  of  the  court ;  and 
for  any  loss  arising  from  his  neglect,  unless  he  makes  it  good 
in  his  final  account,  he  will  be  liable  upon  his  bond.  His  dis- 
obedience to  the  orders  of  the  court  may  be  punished  by  pro- 
ceedings in  contempt,  and  in  extreme  cases  by  his  removal 
from  his  office  and  the  appointment  of  a  new  administrator. 

Read:  2  Bl.  Com.,  pp.  507-520; 

2  Kent  Com.,  Lect.  xxxvii,  pp.  414-436; 

3  Redfield  on  Wills,  pp.  129-221,  225-239,  243-320,  350-433; 
Rice  on  American  Probate  Law,  pp.  340-344,  351-446; 

Croswell  on  Executors  and  Administrators,   §§  310-580,   593-723, 

735-751 ; 
Croswell's  Handbook  on  Executors  and  Administrators,  §§  65-77, 

91-180,  185-229; 
Woerner  on  American  Administration   Law,    §§  77-130,    157-169, 

275-579 ; 
Schouler  on  Executors  and  Administrators,  §§  162-183,  198-547; 
Page  on  Wills,  §§  710-737,  747-805; 
2  Greenleaf  on  Evidence,  §§  338-361; 
Parley's  Mortuary  Law,  pp.  1-7,  59-99. 

§  406.     Of  the  Settlement  of  the  Estates  of  Insolvent  Debtors. 

A  bankrupt  or  insolvent  is  a  person  who  is  unable  to  pay  his 
debts  as  they  fall  due  in  the  usual  course  of  business.  His  assets 
may  exceed  his  liabilities,  but  if  he  cannot  reaUze  upon  them  so 
as  to  maintain  himself  in  good  standing  in  his  trade  he  is  in- 
solvent in  a  legal  sense,  and  is  entitled  to  the  protection  and 
relief  afforded  by  bankruptcy  proceedings.  Proceedings  in 
insolvency,  so  far  as  the  bankrupt  himself  is  concerned,  are 
either  voluntary  or  involuntary.  In  voluntary  iyisolvency  the 
debtor  himself  institutes  the  proceedings  by  a  petition  to  the 
court  that  he  be  declared  insolvent,  and  that  an  assignee  be 
appointed  to  settle  his  estate.  In  involuntary  insolvency  the 
proceedings  are  commenced  by  the  creditors  upon  the  com- 
mission of  an  act  of  bankruptcy  by  the  debtor,  —  such  as  his 


§  406         PROCEDURE   IN  COURTS  OF  PROBATE  453 

failure  to  honor  his  commercial  paper,  his  fraudulent  conceal- 
ment of  his  property,  his  flight  to  escape  legal  process,  or  his 
transfer  of  his  estate  for  the  benefit  of  creditors.  In  voluntary 
insolvency  the  assignee  may  be  selected  by  the  bankrupt;  in 
involuntary  insolvency  he  is  designated  by  the  court;  but  in 
either  case  he  must  receive  the  court's  approval  and  be  duly 
qualified  before  he  can  act.  The  debtor  is  then  required  to 
file  a  complete  schedule  of  his  assets  and  liabilities  in  detail,  and 
give  whatever  other  information  may  be  useful  to  the  assignee. 
Commissioners  are  appointed  to  receive  and  adjudicate  upon 
the  claims,  and  notices  to  present  them  within  a  certain  time 
are  given  to  all  known  creditors ;  the  claims  not  so  presented 
being  entitled  to  no  dividend  from  the  estate.  When  the  time 
thus  prescribed  has  elapsed  the  commissioners  report  to  the 
court  their  finding  as  to  each  claim  presented,  which  may  be 
excepted  to,  appealed  from,  or  confirmed,  and  when  con- 
firmed binds  all  parties  both  as  to  the  allowance  and  disallow- 
ance of  the  respective  claims.  An  order  is  then  made  for  the 
payment  of  a  dividend  pro  rata  on  the  claims  allowed  according 
to  their  legal  priority,  and  subject  to  all  perfected  liens ;  and  if 
this  payment  does  not  exhaust  the  assets  similar  dividends  may 
be  ordered  until  the  debts  are  paid  or  the  assets  are  consumed. 
The  assignee  may  then  render  his  final  account,  whose  acceptance 
by  the  court  releases  him  from  further  duties,  and  the  debtor 
may  thereupon  apply  for  his  discharge,  to  which  he  is  entitled 
if  he  has  comj)licd  with  all  the  recjuirements  of  the  law.  During 
tiiese  proceedings  the  debtor  is  exempted  from  arrest  on  civil 
process  in  reference  to  any  claim  that  could  be  proved  against 
his  estate,  and  from  suit  on  any  claim  that  has  been  actually 
{)roved.  The  duties  of  the  assignee  in  the  collection  and  care 
of  the  assets  are  similar  to  those  of  administrators  and  guardians. 

Rem.  Jurisdiction  over  bankruptcy  proceedings  in  this  coun- 
try resides  both  in  the  United  States  and  in  the  individual 
States;  but  whenever  a  Federal  Bankru|)t  System  is  in  opera- 
tion all  State  systems  are  suspended,  except  in  reference  to 
cases  which  do  not  fall  within  the  Federal  law.  To  distinguish 
one  system  from  the  otiier  the  Federal  law  is  called  the  ''Bank- 
rupt Act,"  and  the  State  laws  are  known  a.s  ''the  Insnlvent 
Laws."     Cases  governed  by  (he  I{aiikruj)t  Act  have  no  relation 


454  ELEMENTARY   LAW  §  407 

to  the  probate  courts,  but  are  under  the  statutory  regulation 
of  the  District  Courts  of  the  United  States.  Cases  under  the 
Insolvent  Laws  are  properly  cognizable  in  equity,  but  are  fre- 
quently entrusted  to  the  local  courts  of  probate.  A  discharge 
under  the  State  Insolvent  Law  protects  the  debtor  only  against 
such  creditors  as  reside  within  the  State,  and  such  non-resident 
creditors  as  have  proved  their  claims;  a  discharge  under  the 
Bankrupt  Act  is  of  universal  operation. 

Read:  2  Bl.  Com.,  pp.  471-488; 

2  Kent  Com.,  Lect.  xxxvii,  pp.  389-408; 

3  Parsons  on  Contracts,  pp.  423-525. 


§  407.     Of  General  Probate  Jurisdiction:    Guardians:    Trustees, 
etc. 

Although  guardianshi'ps  are  properly  within  the  jurisdiction 
of  courts  of  equity,  yet  their  frequent  intimate  connection  with 
the  estates  of  deceased  persons  has  rendered  it  exf)edient  to 
place  them  also  under  the  direction  of  courts  of  probate ;  some- 
times indeed  under  their  exclusive  original  jurisdiction,  with 
an  appellate  jurisdiction  in  the  equity  courts.  The  appoint- 
ment of  a  guardian  for  an  infant  or  incapable  is  made  upon 
the  application  of  some  interested  person,  setting  forth  the 
infancy  or  incapacity  of  the  proposed  ward,  his  residence, 
his  ownership  of  property,  the  non-existence  of  a  guardian,  and 
praying  that  a  guardian  be  appointed.  Thereupon  a  citation 
issues  to  all  persons  having  a  right  to  be  heard,  and  upon  a  trial 
and  judgment  in  favor  of  the  applicant  the  appointment  is 
made.  Petitions  for  the  removal  of  the  guardian,  or  for  per- 
mission to  resign,  and  all  periodical  and  final  accounts  are 
within  the  cognizance  of  the  same  courts.  Testamentary  trustees 
and  their  successors  are  often,  for  the  same  reasons,  placed  by 
law  under  the  supervision  of  the  probate  courts. 

Rem.  In  addition  to  the  foregoing  matters  many  affairs  of 
lesser  consequence,  but  requiring  some  official  aid  or  oversight, 
are  confided  to  the  probate  courts.  Often  these  are  the  lowest 
and  most  accessible  tribunals  having  a  judge,  a  clerk,  a  record, 
and  a  seal ;  and  are  thus  able  to  render  ministerial  and  judicial 
services  of  various  kinds  more  easily  and  economically  than 
any  other  governmental  body.  The  tendency  in  modern  legis- 
lation to  place  all  such  assistance  within  convenient  reach  of 
every  citizen  has  made  these  courts  available  for  the  adoption 


1 


§§  408,  409     PROCEDURE   IN   COURTS   OF  PROBATE     455 

of  children,  the  change  of  personal  names,  the  binding  out  of 
apprentices,  proceedings  in  divorce,  habeas  corpus,  and  other 
remedies,  the  character  of  which  must  be  ascertained  by  con- 
sulting current  local  statutes. 

Read:  3  Redfield  on  Wills,  pp.  434-459; 

Rice  on  American  Probate  Law,  pp.  472-558. 


§  408.     Of  the  Pleadings  in  Courts  of  Probate. 

The  procedure  in  probate  courts  resembles  that  in  courts  of 
equity,  and  is  of  equal  directness  and  simplicity.  The  applica- 
tion, by  which  the  aid  of  the  court  is  usually  invoked,  is  in  the 
form  of  a  petition  setting  up  the  jurisdictional  facts,  and  pray- 
ing for  the  necessary  relief.  Where  the  proceeding  involves 
a  controversy  the  adverse  party  presents  his  case  in  an  answer, 
and  both  the  answer  and  petition  are  amendable  to  any  extent 
which  may  be  requisite  to  make  the  court  fully  acquainted  with 
the  antagonistic  claims.  The  process  is  a  citation  to  appear  and 
show  cause,  enforced  by  an  attachment  for  contempt  where 
the  presence  of  the  respondent  is  essential  to  the  progress  of  the 
cause,  —  as,  for  example,  when  it  demands  an  account  or  a 
disclosure. 

Rem.  Appearance  and  answer  may  be  made  in  courts  of  pro- 
bate either  by  the  parties  in  person,  or  by  agents  or  attorneys. 
The  judge  himself  is  also  the  adviser  of  the  parties ;  it  being  his 
official  duty  to  see  that  all  things  are  rightly  done.  Infants  may 
appear  on  their  own  behalf  in  many  cases,  though  when  a  con- 
troversy arises,  and  judicial  action  as  to  their  personal  or  prop- 
erty rights  becomes  necessary,  they  must  be  represented  by  next 
friend  or  guardian. 

Read:  Rice  on  American  Probate  Law,  pp.  41-50; 

Croswell  on  Executors  and  Administrators,  §§  250-259; 
Croswell's  Handbook  on  Executors  and  Administrators,  §  56; 
Woerner  on  American  Administration  Law,  §§  148,  149,  261-265; 
Page  on  Wills,  §§  318,  319. 

{  409.     Of  the  Trial  and  Judgment  in  Courts  of  Probate. 

The  trial  of  an  issue  by  a  court  of  probate  may  be  conducted 
by  the  judge  in  person,  or  in  proper  cjuses  before  referees  whose 
report,  when  filed,  accepted  and  confirmed,  becomes  the  action 
of  the  court.     The   rules  of  evidence  anil  its   production   are 


456  ELEMENTARY   LAW  §  409 

substantially  the  same  as  those  observed  in  the  equity  courts 
in  the  same  State.  From  probate  judgments  involving  any  im- 
portant issue  appeals  are  generally  allowed  by  statute  to  the 
higher  courts  of  equity  or  common  law,  with  provision  for 
a  jury  trial  if  the  nature  of  the  controversy  is  such  as  to 
demand   it. 

Rem.  The  judgment  of  a  probate  court  upon  any  matter 
within  its  jurisdiction  is  equally  conclusive  with  that  of  any 
other  tribunal.  If  the  judgment  is  in  rem,  —  as,  for  example, 
sustaining  the  validity  of  a  will  or  the  necessity  of  a  sale  of 
assets,  —  it  binds  all  the  world.  If  in  'personam,  it  operates  as 
an  estoppel  on  the  parties  and  their  privies,  to  prevent  them  from 
averring  the  contrary  of  its  decrees.  But  like  all  other  judg- 
ments it  may  be  set  aside  on  direct  appHcation  to  the  court 
itself  for  fraud,  collusion,  or  mistake ;  and  may  be  collaterally 
attacked  for  want  of  jurisdiction. 

Read:  3  Redfield  on  Wills,  pp.  56-65,  115-125; 
Rice  on  American  Probate  Law,  pp.  447-471 ; 
Croswell  on  Executors  and  Administrators,  §§  12-34; 
Croswell's  Handbook  on  Executors  and  Administrators,  §§  10,  12,  13; 
Woerner  on  American  Administration  Law,  §§  145-147,  266-274; 
Schouler  on  Executors  and  Administrators,  §§  150-161; 
Page  on  Wills,  §§  340-346. 


BOOK  III 

OF  PUBLIC  EIGHTS 

§  410.     Of  the  Nature  of  Public  Rights:  Sovereignty. 

A  public  right  is  a  right  which  inheres  in  the  State  either  against 
other  States  or  against  its  own  subjects,  or  wliich  resides  in  its 
own  subjects  against  the  State.  The  common  foundation  of 
all  such  rights  is  the  intrinsic  nature  of  the  State,  wliich  deter- 
mines alike  the  usages  of  nations  and  the  precepts  of  positive 
human  law.  A  State  is  a  political  society,  organized  by  the 
common  consent  of  the  people  iniiabiting  a  certain  territory, 
for  purposes  of  mutual  advancement,  protection,  and  defence, 
and  exercising  whatever  powers  may  from  time  to  time  become 
necessary  to  that  end.  A  State  is  distinguished  from  all  other 
human  societies  —  domestic,  ecclesiastical,  or  commercial  — 
by  its  political  or  civic  character;  and  from  all  other  forms  of 
political  society  by  its  exercise  of  unlimited  dominion  over  all 
persons  and  property  within  the  territory  which  it  occupies. 
Other  societies  are  organized  by  the  common  consent  of  their 
members,  and  are  intended  for  their  mutual  advantage;  the 
State  alone,  in  addition  to  these  (jualities,  is  at  once  political 
and  supreme.  This  political  supremacy  of  the  State  constitutes 
its  sovereignty,  and  is  its  one  essential  attribute.  Its  limits  can- 
not be  defined.  Its  ingrediental  elements  cannot  be  enumerated. 
As  it  comprises  every  power  necessary  to  the  accomplishment 
of  the  end  for  which  the  State  exists,  its  scope  at  any  given 
moment  can  be  determined  only  by  the  exigencies  in  which  the 
State  is  at  that  moment  placed.  To  meet  these  exigencies,  how- 
ever vast  and  unprecedented  tlicy  may  be,  the  sovereignty  of  the 
State,  from  the  very  fact  that  it  is  sovereignty,  must  always  be 
sufficient. 

Rem.  The  precise  distinction  between  private  rights  and  pub- 
lic rights  is  this,  —  that  private  rights  are  both  vested  in  and 


458  ELEMENTARY   LAW  §  411 

asseTtible  against  private  persons  only,  while  public  rights  may 
reside  in  private  persons  and  be  exercised  against  public  persons, 
cr  may  inhere  in  public  persons  and  be  enforcible  against  all 
other  persons  whatsoever,  whether  public  or  private.  All  pub- 
lic rights,  with  their  corresponding  duties,  affect  the  public  in- 
terests and  are,  therefore,  governed  by  public  law. 

Read:  1  Bl.  Com.,  pp.  46-49; 
Rob.  Am.  Jur.,  §§  7,  123,  178; 
1  Austin  on  Jurisprudence,  pp.  220-341 ; 
1  Woolsey  on  Political  Science,  pp.  139-144,  208-220; 
Jameson,  Constitutional  Conventions,  §§  18-62; 
Wharton,  American  Law,  §§  135-139; 
Walker,  American  Law,  §  5; 
Woolsey,  Int.  Law,  §§  36,  37; 
Glenn,  Int.  Law,  §§  9-32; 
Wheaton,  Int.  Law,  §§  16-19; 
Davis,  Int.  Law,  pp.  34-36,  39; 
Cooley,  Const.  Law,  pp.  20-22", 
Cooley,  Const.  Lim.,  pp.  3,  4; 
Tucker  on  the  Constitution,  §§  1-51; 
Morse  on  Citizenship,  §§  1,  2. 


§  411.     Of  Sovereignty,  Internal  and  External. 

The  sovereignty  of  a  State  manifests  itself  in  two  forms,  as 
(1)  Internal  Sovereignty;  and  (2)  External  Sovereignty. 
Internal  Sovereignty  is  the  power  of  the  State  to  make  and 
enforce,  for  the  government  of  itself  and  its  own  subjects,  any 
laws  whatsoever  which  are  not  inconsistent  with  the  purposes 
for  which  the  State  exists.  External  sovereignty  is  the  power  of 
the  State  to  assert  and  maintain  its  own  independence  of  and 
entire  political  equality  with  other  States,  and  to  vindicate  its 
rights  against  them,  whenever  necessary,  by  an  open  and  formal 
public  war.  Sovereignty,  in  both  of  these  forms,  includes  su- 
preme power  over  all  the  fruits  resulting  from  its  exercise; 
including  all  the  domestic  wealth  accumulated  under  its  legal 
protection,  and  all  territory  and  population  ceded  or  subjugated 
to  it  in  its  intercourse  with  foreign  States.  In  the  continual 
extension  of  sovereignty  to  new  subjects  consists  the  develop- 
ment of  progressive  States,  as  in  its  restriction  is  apparent 
their  decline;  and  with  the  total  loss  of  either  of  its  forms, 
whether  by  successful  revolution  from  within  or  conquest  from 
without,  sovereignty  is  destroyed  and  the  State,  as  a  supreme 
political  society,  ceases  to  exist. 


§  411  SOVEREIGNTY  459 

Rem.  The  original  seat  of  sovereignty  is  in  the  people  by 
whose  consent  and  for  whose  benefit  the  State  was  organized. 
The  'peo'ple  are  the  citizens  of  the  State ;  the  persons  who  by  their 
own  acts,  concurring  with  the  acts  of  the  other  members  of  the 
State,  have  become  incorporated  into  it  as  integral  portions  of 
the  commonwealth.  Not  all  the  inhabitants  of  the  territory 
governed  by  a  State  necessarily  belong  to  its  people,  nor  is  it  es- 
sential that  everj'  citizen  of  a  State  should  always  reside  within  its 
boundaries.  What  individuals  constitute  the  people  of  a  State 
at  any  particular  moment,  therefore,  depends  upon  the  provisions 
of  its  own  organic  law.  INIoreover,  sovereignty  inheres  in  the 
people  of  a  State,  not  distributively  but  collectively,  as  a  commu- 
nity or  artificial  unitary  being,  whose  will  is  exercised  in  the  only 
way  in  which  the  voUtions  of  a  collective  being  can  be  adequately 
exercised,  —  namely,  by  the  act  of  a  majority  of  its  members. 
In  States  of  Umited  membership  and  narrow  territory  sovereignty 
may  be  exerted  directly  by  the  people ;  all  governmental  func- 
tions being  performed  by  the  co-operation  of  the  whole  number 
or  by  the  major  portion  of  its  citizens.  In  States  whose  larger 
population  or  wider  area  render  this  direct  exercise  of  popular 
sovereignty  impossible,  the  sovereign  powers  of  the  people  are 
necessarily  delegated,  to  a  greater  or  less  extent,  to  officers  who 
represent  the  peof>le;  and  a  governmental  system.,  distinct  from 
but  dependent  on  the  body  of  the  people,  is  produced  in  which,  as 
long  as  it  endures,  the  delegated  sovereignty  resides.  Against  this 
delegated  sovereignty  no  individual  citizen,  nor  faction  of  the 
citizens,  can  rightfully  rebel.  The  sole  power  to  withdraw  or 
modify  it  rests  with  the  collective  people  by  whom  it  was  con- 
ferred; they  acting  by  a  peaceful  reconstruction  of  the  govern- 
mental system  through  the  vote  of  the  majority,  or  by  a  violent 
revolution  in  which  all  concur  or  to  which  non-concurrents 
finally  submit.  Every  sovereign  power  which  has  not  thus  been 
delegated  to  the  current  governmental  system  remains  in  the  col- 
lective people,  and  may  at  any  time  be  exercised  by  them  di- 
rectly, or  through  other  delegates,  in  any  manner  not  subversive  of 
the  authority  already  vested  in  the  established  government. 

Read:  1  Woolsey  on  Political  Science,  pp.  198-207; 
Andrews,  American  Law,  §§  77-126; 
Wheaton,  Int.  Law,  §§  20,  21; 
Moore,  Int.  Law,  §§  175-188; 
Cooley,  Const.  Law,  pp.  275-294; 
Cooloy,  Const.  Lim.,  pp.  892-944; 
Foster  on  the  Constitution,  §  .39; 
Tucker  on  the  Constitution,  §§  52,  53,  60; 
Morse  on  Citizenship,  §§  3,  4; 
Webster  on  Citizenship,  §§  20-47. 


460  ELEMENTARY  LAW  §  412 

§  412.     Of  Constitutional  Government. 

The  establishment  of  a  permanent  governmental  system,  to 
which  the  exercise  of  sovereign  powers  is  delegated  by  the 
people,  gives  to  the  State  its  constitution  or  organic  form.  Such 
constitutions  may  be  the  work  of  ages,  —  the  people  manifest- 
ing their  collective  will  and  wisdom  in  gradually  accumulating 
customs,  corrected  and  extended  by  experience  but  never  reach- 
ing final  and  complete  expression;  or  they  may  be  begun  and 
finished  in  a  brief  popular  convention  which  by  one  supreme 
legislative  act  creates  the  entire  governmental  system,  with  all 
its  elements  and  combinations,  and  ordains  the  rules  by  which 
its  exercise  of  sovereign  powers  shall  be  directed.  Examples 
of  the  gradual  development  of  customary  governmental  systems 
are  found  in  the  British  Constitution,  and  in  the  unwritten 
constitutions  of  the  original  American  States;  an  example  of 
systems  legislatively  created  by  the  people  is  the  Federal  Consti- 
tution of  the  United  States.  The  effect  of  the  establishment  of 
a  new  governmental  system,  upon  the  exercise  by  the  collective 
people  of  their  sovereign  powers,  varies  according  to  the  method 
and  degree  in  which  sovereignty  has  hitherto  been  delegated. 
No  constitution,  written  or  unwritten,  can  in  any  measure 
increase  or  diminish  the  ultimate  sovereignty  of  the  people; 
its  utmost  possible  result  in  any  case  is  to  suspend  the  exercise 
of  certain  sovereign  powers  by  the  collective  body,  and  vest  it 
in  the  public  officers  of  whom  the  governmental  system  is  com- 
posed. When  this  system  has  been  gradually  evolved  by  custom 
the  scope  of  its  delegated  authority,  at  any  given  moment,  is 
indicated  by  the  powers  which  it  asserts  and  in  which  the  collec- 
tive people  acquiesce;  and  the  adoption  of  a  new  constitution 
by  the  people  curtails  or  extends  existing  powers  according  to 
the  effect  of  its  provisions,  as  compared  with  the  authority 
already  exercised.  Hence  in  States  where  the  entire  practical 
dominion  has  been  customarily  entrusted  to  the  governmental 
body,  as  in  a  pure  democracy  or  aristocracy  or  monarchy,  a 
new  constitution  can  be  only  a  reassertion  or  a  limitation  of  its 
powers.  On  the  other  hand,  in  States  newly  created  by  a  written 
or  other  formal  constitution,  like  the  United  States,  and  in  which 
political  supremacy  has  hitherto  resided  in  the  people  as  a  whole, 
the  constitution  is  a  specific  (jrant  of  powers ;   the  governmental 


§  412  SOVEREIGNTY  461 

system  it  produces  has  no  aiithority  beyond  thot  which  the  con- 
stitution expresses  or  necessarily  implies;  and  all  powers  not 
thus  granted  remain  for  present  exercise  and  possible  future 
delegation  in  the  collective  people  of  the  State.  In  like  manner, 
where  a  constitution  is  amended,  or  is  superseded  by  another, 
a  comparison  between  them  will  determine  whether  the  sover- 
eignty delegated  to  the  governmental  system  has  been  restricted 
or  enlarged. 

Rem.  A  sovereign  State,  although  politically  supreme,  is 
nevertheless  subordinate  to  law.  As  it  derives  its  existence 
through  the  law  of  nature  from  the  eternal  law,  the  immutable 
principles  of  reason  and  justice  which  call  it  into  being  impose 
upon  it  certain  rules  of  action,  which  it  cannot  disregard  without 
its  own  destruction.  It  receives  its  sovereign  powers  from  the 
people  upon  the  trust  that  it  will  exercise  them  for  the  purposes 
for  which  they  were  bestowed,  and  forfeits  them  by  their  disuse 
or  abuse.  It  holds  its  place  among  the  nations  of  the  earth  upon 
the  condition  that  it  will  observe  the  traditions  and  usages  which 
the  nations  have,  by  common  consent,  adopted  as  their  guide  in 
the  conduct  of  their  intercourse  with  one  another.  Thus  on  every 
side  the  State  is  hemmed  in  and  controlled  by  law.  The  funda- 
mental principles  and  express  provisions  which  define  and  regu- 
late the  powers  included  in  its  internal  sovereignty  form  its 
Constitutional  Law,  obedience  to  which  may  be  enforced  by  the 
people,  —  ordinarily  by  nullifying  its  action  through  the  courts, 
but  in  extraordinary  cases  by  overturning  the  government  itself. 
The  usages  and  traditions  which  direct  the  operations  of  its  ex- 
ternal sovereignty  are  comprised  in  the  doctrines  and  precedents 
of  International  Laic,  a  neglect  of  which  in  any  matters  may 
result  in  war,  and  whose  persistent  disregard  may  provoke  its 
total  exclusion  from  the  family  of  nations,  and  its  deprivation  of 
all  the  privileges  and  imnmnities  which  the  union  of  nations 
under  a  legal  sanction  was  intended  to  secure. 

Read:  Rob.  Am.  Jur.,  §§  240-24G; 

1  Woolsey  on  Political  Science,  pp.  282-290; 

Walker,  .\merican  I/aw,  §§  10-15; 

Clark,  Klerneiitary  Law,  §§  8-11  ; 

The  Koderali.st  (Ford's  Kti.),  Introd.,  pp.  vii-xix; 

Cooley,  Const.  Law,  pp.  22-24,  2r)-,33,  36-13,  218-223; 

Cooley,  Const.  Lim.,  pp.  4-11,  70-123,  227-200; 

Story' on  the  Constitution,  §§  198-1')G,  1832-1842; 

Hare,  Const.  Law,  pp.  119-240; 

Miller  on  tlie  Constitution,  pp.  1-34; 

Foster  on  the  Constitution,  §§  1-10; 


462  ELEMENTARY  LAW  §  413 

Tucker  on  the  Constitution,  §§  53-59,  69-185,  386-390; 

Bryant  on  the  Constitution,  pp.  1-7,  282-291 ; 

Tiedeman  on  the  Unwritten  Constitution,  pp.  16-45,  155-165. 

§  413.     Of  the  External  Sovereignty  of  the  United  States. 

The  United  States  is  a  State  created  by  a  written  constitution, 
and  consequently  possesses  all  those  powers,  and  those  powers 
only,  which  are  expressed  in  or  are  necessarily  implied  from  the 
language  of  that  instrument  itself.  The  purpose  and  ejject  of 
the  Federal  Constitution  were  twofold:  (1)  To  combine  the 
several  States  and  their  people  into  a  new  State,  coequal  in  all 
respects  to  the  other  independent  nations  of  the  earth;  (2)  To 
define  and  locate  in  the  proper  branches  of  the  Federal  govern- 
ment those  sovereign  powers  which  the  new  State  then  received. 
By  creating  a  new  State,  coequal  to  other  independent  nations, 
the  Constitution  bestowed  on  it  complete  external  sovereignty, 
including  every  power  which  either  then,  or  at  any  future  time, 
should  become  necessary  to  its  existence  as  a  nation,  or  vest  in 
it  under  the  ancient  laws  and  customs  by  which  the  external 
sovereignty  of  other  nations  should  be  controlled. 

Rem.  The  language  of  the  Constitution  neither  does  nor  could 
define  or  limit  these  external  powers.  It  could  designate  the 
branches  of  the  government  by  which  such  powers  should  be  ex- 
ercised, but  the  foresight  of  no  jurists  or  statesmen  was  sufficient 
to  discern  and  prescribe  the  future  methods  of  their  application, 
or  the  subjects  to  which  they  might  eventually  extend.  The 
same  indefiniteness  is  predicable  of  the  authority  of  the  United 
States  over  the  fruits  arising  from  the  exercise  of  its  external  sov- 
ereignty; as  in  the  case  of  territory  or  population  acquired  by 
treaty  or  by  war.  The  Constitution  neither  decides  the  moment 
and  the  mode  by  which  these  pass  from  the  domain  of  the  external 
into  that  of  the  internal  sovereignty,  nor  defines  their  status  nor 
directs  the  method  of  their  administration  during  the  transition 
period  between  the  date  when  the  external  sovereignty  over 
them  begins,  and  that  at  which  it  is  displaced  by  the  internal. 
All  these  are  matters  which  human  wisdom  is  not  competent  to 
foreordain,  but  which  each  independent  nation  must  determine 
for  itself  when  the  event  occurs,  in  the  light  of  their  then  existing 
international  usages  and  rules. 

Read:  1  Kent  Com.,  Lect.  x,  pp.  201-219; 

Cooley,  Const.  Law,  pp.  98-102 ; 
Foster  on  the  Constitution,  §  40. 


§§  414,  415  SOVEREIGNTY  463 

§  414.     Of  the  Internal  Sovereignty  of  the  United  States. 

The  powers  included  in  the  internal  sovereignty  of  the  United 
States  are  of  two  classes:  (1)  Those  which  are  necessary  to  the 
maintenance  of  its  external  sovereignty,  —  such  as  the  power 
to  raise  and  support  armies  or  to  collect  revenue  for  national 
purposes ;  (2)  Those  which  are  necessary  to  produce  uniformity 
throughout  the  entire  nation  in  reference  to  matters  which 
cannot  advantageously  be  regulated  by  divergent  local  laws,  — 
such  as  the  postal,  patent,  and  bankrupt  systems,  the  relations 
created  by  interstate  commerce,  and  the  standard  of  weights 
and  measures. 

B^m.  The  powers  of  the  first  class  are,  to  some  extent,  enu- 
merated in  the  Constitution ;  but  all  those  which  ever  can,  in  any 
possible  emergency,  be  essential  to  the  United  States,  for  the  pres- 
ervation of  its  coequal  rank  among  the  independent  nations  of 
the  world,  are  implied  in  its  creation  as  a  State,  and  are  covered 
by  that  sweeping  clause  of  the  Constitution  which  confers  upon  it 
every  incidental  power  that  may  be  necessary  for  carrying  its  gen- 
eral powers  into  effect.  The  powers  of  the  second  class  are,  for 
the  most  part,  specified  in  the  text  of  the  Constitution,  and  to  them 
others  may  be  added  from  time  to  time  by  amendment,  as  occa- 
sion may  arise. 

Read:  Walker,  American  Law,  §§  24-29; 
Clark,  Elementary  Law,  §§  17-20; 
Cooley,  Const.  Law,  pp.  105-107; 
Story  on  the  Constitution,  §§  457-517; 
Hare,  Const.  Law,  pp.  96-118; 
Foster  on  the  Constitution,  §§  13-34; 
Tiedeman  on  the  Unwritten  Constitution,  pp.  129-154. 

§  415.     Of  the  Sovereignty  of  the  Individual  States  of  the  Ameri- 
can Union  and  of  their  People. 

The  Federal  Constitution  expressly  reserves  to  the  respective 
States,  or  to  their  people,  all  sovereign  powers  not  delegated  by 
the  Constitution  to  the  United  States,  nor  prohibited  by  it  to 
the  individual  States.  The  character  and  scope  of  these  reserved 
powers,  though  undefined,  are  with  approximate  accuracy  as- 
certainable. In  the  first  place,  all  powers  included  in  external 
sovereignty,  or  incidental  thereunto,  being  delegated  to  the 
United  States  are  thereby  denied  to  the  respective  States  and  to 
their  people.     In  the  second  place,  where  the  United  States  has 


464  ELEMENTARY   LAW  §  415 

exercised  its  constitutional  power  to  establish  uniform  laws 
and  institutions  throughout  all  the  States,  no  State  or  people 
can  set  up  institutions  or  enact  and  enforce  laws  which  are 
incompatible  therewith.  In  the  third  'place,  all  powers  included 
in  internal  sovereignty,  except  those  which  are  prohibited  by 
the  Federal  Constitution  to  the  individual  States,  reside  in  the 
respective  States  or  in  their  people.  Where  the  line  is  to  be 
drawn  between  the  powers  vested  in  the  States  as  governmental 
systems,  and  those  residing  in  their  people,  depends  in  part 
upon  their  written  constitutions,  and  in  part  upon  the  sovereignty 
which  had  been  delegated  by  the  people  to  the  State  before  its 
written  constitution  was  adopted.  In  every  State  in  the  Union, 
—  in  the  thirteen  original  States  actually,  and  in  all  later  States 
theoretically,  —  the  State  is  older  than  its  written  constitution, 
and  in  that  primitive  stage  enjoyed  a  sovereignty  whose  limita- 
tions and  inclusions  were  determined  by  the  authority  which 
it  customarily  asserted  and  which  its  people  collectively  obeyed. 
Its  written  constitution  either  ratified  or  extended  or  abridged 
these  sovereign  powers,  or  passed  them  by  unnoticed.  Those 
which  it  ratified  or  passed  unnoticed  the  State  still  retains. 
Those  which  it  abridged  exist  within  the  limits  fiLxed  by  the 
abridgment.  Those  which  it  extended  were  then,  for  the  first 
time,  conferred  by  the  people  on  the  State.  The  present  sov- 
ereign powers  of  any  individual  State  of  the  Union,  therefore, 
consist  of  those  powers  which  vested  in  it  under  its  unwritten 
constitution,  with  such  abridgments  and  extensions  as  its  written 
constitution  and  the  Federal  Constitution  have  ordained.  All 
other  powers  embraced  in  internal  sovereignty  remain  in  its 
collective  people,  to  be  exercised  or  delegated  when  they  will. 

Rem.  The  powers  prohibited  by  the  Federal  Constitution  to 
the  individual  States  are  these:  (1)  To  enter  into  any  treaty, 
alliance,  or  confederation  with  other  States ;  (2)  To  grant  letters 
of  marque  or  reprisal ;  (3)  To  coin  money,  emit  bills  of  credit,  or 
make  anything  but  gold  and  silver  legal  tender  for  the  payment 
of  debts ;  (4)  To  pass  bills  of  attainder,  or  ex  post  facto  laws,  or 
laws  impairing  the  obligation  of  contracts;  (5)  To  grant  any 
title  of  nobility ;  (6)  To  lay  duties  upon  exports  or  imports,  ex- 
cept what  may  be  absolutely  necessary  for  executing  its  inspec- 
tion laws,  nor  any  tonnage  duty,  without  the  consent  of  Congress ; 
(7)  To  keep  troops   or  ships  of  war  in  time  of  peace,  or  enter 


§  415  SOVEREIGNTY  465 

into  any  agreement  with  another  State  or  with  a  foreign  power, 
or  engage  in  war  unless  actually  invaded  or  in  such  imminent 
danger  as  to  admit  of  no  delay,  without  the  consent  of  Congress ; 
(8)  To  deny  full  faith  and  credit  to  the  public  acts,  records,  and 
judicial  proceedings  of  the  other  States,  or  to  withhold  from  the 
citizens  of  the  other  States  the  immunities  and  privileges  enjoyed 
by  its  own  citizens ;  (9)  To  refuse  to  deUver  to  another  State  a 
fugitive  therefrom  for  crime,  or  to  his  lawful  owner  any  person 
escaping  from  servitude ;  (10)  To  adopt  any  form  of  government 
which  is  not  republican;  (11)  To  permit  within  its  borders  any 
slavery  or  involuntary  servitude,  except  for  a  crime  of  which  the 
party  has  been  lawfully  convicted ;  (12)  To  pass  a  law  abridging 
the  immunities  of  any  citizen  of  the  United  States;  (13)  To  de- 
prive any  person  of  life,  Uberty,  or  property  without  due  process 
of  law,  or  to  deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  its  laws ;  (14)  To  deny  to  any  male  inhabitant  of 
any  State,  who  at  the  time  is  of  the  age  of  twenty-one  years  and 
is  a  citizen  of  the  United  States,  the  right  to  vote  for  President 
or  Vice-President  of  the  United  States,  or  for  Representative  in 
Congress,  or  for  the  executive  or  judicial  officers  of  the  State,  or 
for  the  members  of  its  legislature,  except  on  account  of  his  par- 
ticipation in  rebelHon  or  other  crime ;  (15)  To  deny  to  any  person 
the  right  to  vote  on  account  of  race,  color,  or  previous  condition 
of  servitude;  (16)  To  pay  any  debt  or  obligation  incurred  in  aid 
of  insurrection  or  rebellion  against  the  United  States,  or  any 
claim  for  the  loss  or  emancipation  of  any  slave. 

Read:  1  Kent  Com.,  Lect.  xix,  pp.  407-446; 
Rob.  Am.  Jur.,  §§  247-253; 
Clark,  Elementary  Law,  §§  21,  22; 

Cooley,  Const.  Law,  pp.  3-19,  29,  33-36,  182-206,  2G8-217; 
Cooley,  Const.  Lim.,  pp.  35-G9,  124-186; 
Story  on  the  Constitution,  §§  159-197,  1906-1909; 
Hare,  Const.  Law,  pp.  35-37,  94-96; 
Foster  on  the  Constitution,  §§  11,  12,  41; 
Bryant  on  the  Constitution,  pp.  317-321 ; 
Tiedeman  on  tlie  Unwritten  Constitution,  pp.  110-128. 


30 


466  ELEMENTARY   LAW  §  416 


CHAPTER  I 

OF    THE    LAW   OF    INTERNAL    SOVEREIGNTY; 
CONSTITUTIONAL    LAW 

§  416.     Of  the  Functions  of  Government. 

The  internal  sovereignty  of  a  State  manifests  itself  through 
the  performance  of  three  governmental  functions:  (1)  The 
Legislative,  which  makes  laws;  (2)  The  Judicial,  which  inter- 
prets and  applies  laws ;  (3)  The  Executive,  which  enforces  laws. 
The  location  and  relation  of  these  functions  in  the  State  con- 
stitute its  jorm  of  government,  and  determine  whether  it  is  a 
monarchy,  in  which  these  functions  center  in  a  single  individ- 
ual; or  an  aristocracy,  in  which  they  are  entrusted  to  a  ruling 
class ;  or  a  democracy,  in  which  they  are  discharged  by  the  whole 
people  in  a  popular  assembly;  or  a  republic,  in  which  they  are 
performed  by  representatives  chosen  by  the  people. 

Rem.  In  a  pure  monarchy  and  in  a  democracy  these  govern- 
mental functions  are  inseparable,  but  in  an  aristocracy  or  a  re- 
public they  may  be  divided,  and  legislative  powers  may  then 
reside  in  one  group  of  persons,  judicial  powers  in  a  second  group, 
and  executive  powers  in  a  third.  Modern  theories  concerning 
the  welfare  of  the  State  and  the  security  of  citizens  demand  this 
separation,  and  toward  it,  as  also  toward  the  republican  form  of 
government,  all  civilized  nations  now  evidently  tend.  This  form 
of  government,  and  this  distribution  of  governmental  fimctions, 
were  spontaneously  adopted  by  the  American  States  when  they 
repudiated  the  authority  of  the  British  crown ;  were  deliberately 
incorporated  into  the  organic  structure  of  the  United  States, 
and  are  perpetually  guaranteed  both  to  the  United  States  and 
to  every  individual  State  by  the  provisions  of  the  Federal 
Constitution. 

Read:  1  Bl.  Com.,  pp.  49-51,  146-155,  181-186; 
Rob.  Am.  Jiir.,  §  8; 
Walker,  American  Law,  §§  7,  8; 
Andrews,  American  Law,  §§  182-187; 
Clark,  Elementary  Law,  §§  12-16,  23; 


§417  CONSTITUTIONAL   LAW  467 

1  Woolsey  on  Political  Science,  pp.  290-293 ; 
Davis,  Int.  Law,  pp.  40,  41; 
Cooley,  Const.  Law,  pp.  44-47,  160-181 ; 
Story  on  the  Constitution,  §§  518-544; 
Miller  on  the  Constitution,  pp.  59-116; 
Foster  on  the  Constitution,  §§  42-45; 
Webster  on  Citizenship,  pp.  47,  48. 


§  417.     Of  the  Legislative  Fiinction  of  the  United  States. 

The  legislative  junction  of  the  United  States  is,  by  the  Con- 
stitution, located  in  Congress,  —  an  assembly  composed  of  a 
House  of  Representatives  elected  directly  by  the  people,  and  a 
Senate  chosen  by  the  legislatures  of  the  respective  States,  — 
the  concurrence  of  both  these  bodies  being  necessary  to  the  per- 
formance of  any  legislative  act.  The  general  legislative  poiver 
of  the  United  States  extends  to  every  measure  essential  to  the 
preservation  and  enforcement  of  its  external  or  internal  sover- 
eignty, unless  expressly  forbidden  by  the  Constitution;  and  to 
all  measures  enumerated  in  the  Constitution  whether  they  are 
essential  to  its  sovereignty  or  not. 

Rem.  The  measures  forbidden  to  Congress  by  the  Constitu- 
tion are  these:  (1)  To  suspend  the  writ  of  habeas  corpus,  except 
in  times  of  rebellion  or  invasion  where  the  public  safety  requires 
it ;  (2)  To  grant  any  title  of  nobility,  or  pass  any  bill  of  attainder 
or  ex  post  facto  law,  or  abridge  the  right  to  vote  on  account  of 
race,  color,  or  previous  condition  of  servitude;  (3)  To  make 
any  law  respecting  an  establishment  of  religion  or  prohibiting  the 
free  exercise  thereof ;  (4)  To  pass  laws  abridging  the  freedom  of 
speech  or  of  the  press,  or  the  right  of  the  people  to  peaceably 
assemble  or  to  petition  the  government  for  a  redress  of  grievances, 
or  to  keep  and  bear  arms ;  (5)  To  take  private  property  for  pub- 
Uc  use  without  just  compensation ;  (6)  To  call  in  question  the 
validity  of  the  lawful  public  debts  of  the  United  States ;  (7)  To 
lay  a  direct  tax  except  in  proportion  to  the  enumeration  of  the 
public  census ;  (8)  To  tax  the  exports  from  any  State,  or  to  show 
any  preference  to  any  State  in  the  regulation  of  commerce  or 
in  imposing  revenue  duties,  or  to  compel  vessels  plying  between 
the  different  States  to  enter,  clear,  or  pay  duties ;  (9)  To  expend 
any  money  unless  in  consequence  of  appropriations  made  by 
law.  The  measures  which  the  Constitution  cxpresshj  confers 
upon  Congress  the  power  to  adopt  are  the  following:  (1)  To 
levy  and  collect  uniform  duties,  taxes,  imposts,  and  excises,  in 
order  to  pay  the  debts  and  provide  for  the  common  defence  and 


468  ELEMENTARY   LAW  §  417 

general  welfare  of  the  United  States;  (2)  To  borrow  or  coin 
money,  to  regulate  its  value  and  that  of  foreign  coin,  to  punish 
counterfeiting,  and  to  fix  the  standard  of  weights  and  measures ; 
(3)  To  establish  a  uniform  system  of  naturalization  throughout 
the  United  States ;  (4)  To  establish  and  maintain  a  national  pos- 
tal service;  (5)  To  regulate  commerce  between  the  States  and 
with  foreign  nations,  and  with  the  Indian  tribes;  (6)  To  issue 
patents  for  inventions,  and  copyrights  for  literary  productions ; 
(7)  To  establish  a  uniform  system  of  bankruptcy;  (8)  To  con- 
stitute judicial  tribunals  inferior  to  the  Supreme  Court  of  the 
United  States ;  (9)  To  control,  through  the  action  of  the  Senate, 
all  treaties  with  foreign  nations,  and  the  appointment  of  the  prin- 
cipal political,  judicial,  and  executive  officers  of  the  United  States ; 
(10)  To  admit  new  States  to  the  Union,  govern  the  territories 
and  other  property  of  the  United  States,  and  propose  amendments 
to  the  Constitution  ;  (11)  To  prescribe  the  mode  by  which  proof 
concerning  the  acts,  records,  and  judicial  proceedings  of  one 
State  shall  be  made  in  the  courts  of  another  State,  and  what 
shall  be  the  effect  thereof;  (12)  To  exercise  exclusive  jurisdic- 
tion over  the  district  in  which  may  be  the  seat  of  government  of 
the  United  States,  and  over  all  pubHc  lands  or  buildings  owned 
by  the  United  States  within  the  limits  of  an  individual  State; 
(13)  To  fix  the  penalty  for  treason,  and  to  punish  piracy  and 
felony  on  the  high  seas,  and  other  ofl'ences  against  the  law  of 
nations;  (14)  To  declare  war,  raise  and  support  armies  and 
navies,  prescribe  laws  for  the  government  of  the  land  and  naval 
forces,  provide  for  calling  out  the  militia  of  the  States  and  arm 
and  govern  them,  issue  letters  of  marque  and  reprisal,  and  make 
rules  for  captures  both  on  land  and  sea;  (15)  To  make  all  other 
laws  which  shall  be  necessary  for  carrying  into  effect  the  foregoing 
powers,  and  all  other  powers  vested  by  the  Constitution  in  the 
government  of  the  United  States.  In  addition  to  the  foregoing 
measures,  and  as  further  safeguards  to  the  liberty  and  welfare  of 
the  people,  the  Constitution  also  provides  that  all  bills  for  revenue, 
and  all  proceedings  for  the  impeachment  of  the  President,  shall 
originate  in  the  popular  body,  —  the  House  of  Representatives ; 
and  that  no  measure  can  become  a  law  unless  it  receives  the  ex- 
press or  implied  approval  of  the  President,  or  is  supported  by  at 
least  two-thirds  of  the  members  of  each  House  of  Congress. 

Read:  1  Kent  Com.,  Lects.  xi,  xii,  pp.  221-268; 
Walker,  American  Law,  §§  30-37,  52,  53,  56-80; 
Andrews,  American  Law,  §§  188-284,  296-314; 
Cooley,  Const.  Law,  pp.  47-51,  64-98,  102-105,  107-114; 
Cooley,  Const.  Lim.,  pp.  11-18,  186-226; 
Story  on  the  Constitution,  §§  545-880,  892-1352; 
Hare,  Const.  Law,  pp.  427-503; 
Miller  on  the  Constitution,  pp.  189-216,  433-473,  523-565; 


§  418  CONSTITUTIONAL  LAW  469 

Tucker  on  the  Constitution,  §§  186-337; 
Bryant  on  the  Constitution,  pp.  8-205; 

Marshall's  Decisions,  pp.    1-41    (1    Cranch,   137-180),   194-217   (2 
Cranch,  87-148),  299-338  (4  Wheat.  518-715). 


§  418.     Of  the  Judicial  Function  of  the  United  States. 

The  judicial  junction  of  tlie  United  States  is  exercised  by  the 
Supreme  Court  of  the  United  States,  and  by  such  inferior  courts 
as  Congress  may  from  time  to  time  ordain  and  estabhsh.  At 
present  these  inferior  courts  are  the  Circuit  Courts,  the  Circuit 
Court  of  Appeals,  the  District  Courts,  the  Court  of  Claims,  and 
various  other  tribunals  in  the  District  of  Columbia,  in  the  Ter- 
ritories, and  in  the  different  executive  departments  of  the  gov- 
ernment. The  judges  of  these  courts  are  appointed  by  the 
President,  subject  to  the  approval  of  the  Senate,  or  in  pursuance 
of  some  special  Act  of  Congress;  and  those  presiding  over  the 
courts  above  specifically  named  hold  office  during  good  be- 
havior. The  judicial  power  of  the  United  States  extends :  (1)  To 
all  cases  in  law  and  ecjuity  arising  under  the  Federal  Consti- 
tution, the  laws  of  the  United  States,  and  treaties  made  under 
its  authority;  (2)  To  all  cases  affecting  ambassadors,  other 
public  ministers,  and  consuls;  (3)  To  controversies  between 
two  or  more  States,  or  between  citizens  of  different  States,  or 
between  citizens  of  the  same  State  claiming  lands  under  grants 
of  different  States ;  (4)  To  suits  by  one  State  against  the  citizens 
of  other  States  or  against  foreign  States,  citizens,  or  subjects; 
(5)  To  all  cases  of  admiralty  and  maritime  jurisdiction. 

Rem.  The  restraints  placed  by  the  Constitution  upon  the  exer- 
cise of  this  judicial  power  relate  chiefly  to  prosecutions  and  pun- 
ishments for  crimes,  and  provide:  (1)  That  no  unreasonable 
searches  or  seizures  shall  be  made,  and  that  all  seizures  and 
searches  whatsoever  must  be  based  upon  a  warrant  issued  upon 
probable  cause,  supported  by  oath  or  affirmation,  and  particu- 
larly describing  the  ])lace  to  be  searched  or  the  thing  or  person 
to  be  seized ;  (2)  That  no  person  shall  be  held  for  any  capital  or 
infamous  crime  except  upon  a  presentment  or  indictment  by  a 
grand  jury,  unless  in  cases  arising  in  the  land  or  naval  forces 
or  in  the  militia  when  in  actual  service  in  time  of  war  or  public 
danger;  (3)  That  no  person  shall  be  deprived  of  life,  liberty,  or 
proj)erty  without  due  jiroccss  of  law;  (4)  That  no  person  shall 
be  twice  put  in  ji-opardy  of  life  or  limb  for  the  same  offence; 


470  ELEMENTARY  LAW  §  419 

(5)  That  excessive  bail  should  not  be  required ;  (6)  That  every 
accused  person  shall  have  a  speedy  and  public  trial  by  an  im- 
partial jury  of  the  State  and  District  where  the  crime  was  com- 
mitted, or,  if  not  committed  in  any  State  or  District,  then  of  the 
place  appointed  by  the  Acts  of  Congress ;  (7)  That  every  accused 
person  shall  be  informed  of  the  nature  and  cause  of  the  accusa- 
tion, shall  be  confronted  with  the  witnesses  against  him,  shall 
have  compulsory  process  for  obtaining  witnesses  in  his  favor, 
and  the  assistance  of  counsel  for  his  defence ;  (8)  That  no  person 
shall  be  compelled  to  be  a  witness  against  himself;  (9)  That  no 
excessive  fines  shall  be  imposed,  nor  any  cruel  or  unusual  pun- 
ishment be  inflicted ;  (10)  That  no  act  shall  be  regarded  as  treason 
against  the  United  States  except  the  act  of  levying  war  against  the 
United  States  or  the  act  of  adhering  to  their  enemies  giving  them 
aid  and  comfort;  (11)  That  no  person  shall  be  convicted  of  trea- 
son except  on  the  testimony  of  two  witnesses  to  the  same  overt 
act,  or  on  confession  in  open  court;  (12)  That  no  attainder  of 
treason  shall  work  corruption  of  blood  or  forfeiture,  except  dur- 
ing the  life  of  the  person  attainted.  In  reference  to  civil  actions 
the  Constitution  guarantees  a  trial  by  jury  where  the  action  is  at 
common  law,  if  the  value  of  the  matter  in  controversy  exceeds 
twenty  dollars,  and  forbids  any  fact  once  decided  by  a  jury  to  be 
re-examined  in  any  court  of  the  United  States  otherwise  than 
according  to  the  rules  of  the  common  law.  Upon  that  provision 
of  the  Constitution  which  extends  the  judicial  power  of  the 
United  States  to  all  cases  in  law  or  equity  arising  under  the  Fed- 
eral Constitution,  the  laws  of  the  United  States  and  treaties  made 
under  its  authority,  no  definite  limits  can  be  placed.  In  effect  it 
makes  the  judicial  function  as  broad  and  flexible  as  the  legisla- 
tive function,  since  whatever  rights  may  at  any  time  be  conferred 
by  the  Constitution,  the  treaties,  or  the  Acts  of  Congress  may  also 
be  vindicated  in  the  Federal  Courts. 

Read:  1  Kent  Com.,  Lects.  xiv-xviii,  pp.  290-386; 
Rob.  Am.  Jur.,  §§  352-364; 
Walker,  American  Law,  §§  44-50; 
Cooley,  Const.  Law,  pp.  52-54,  123-159,  310-362; 
Cooley,  Const.  Lim.,  pp.  22-35,  419-595; 
Story  on  the  Constitution,  §§  1573-1803; 
Miller  on  the  Constitution,  pp.  309-350,  373-418,  485-510; 
Tucker  on  the  Constitution,  §§  364-385; 
Bryant  on  the  Constitution,  pp.  221-243,  292-317. 


§  419.     Of  the  Executive  Function  of  the  United  States. 

The  executive  function  of  the  United  States  is  exercised  by  the 
President  and  the  various  subordinate  officers  through  whom  the 


§  419  CONSTITUTIONAL  LAW  471 

administration  of  public  affairs  is  conducted.  The  President 
is  elected  by  the  people  indirectly  through  a  body  of  delegates; 
the  subordinate  officers  are  appointed  by  him  unless  Congress 
otherwise  provides.  His  constitutional  powers  are:  (1)  To  be 
commander-in-chief  of  the  army  and  navy  of  the  United  States, 
and  of  the  militia  of  the  several  States  when  called  into  the  actual 
service  of  the  United  States;  (2)  To  make  treaties  with  foreign 
States  by  and  with  the  advice  and  consent  of  the  Senate ;  (3)  To 
nominate  and,  with  the  consent  of  the  Senate,  to  appoint  am- 
bassadors, public  ministers,  consuls,  judges  of  the  Supreme 
Court,  and  other  officers  for  whose  designation  no  other  method 
is  prescribed  by  law;  (4)  To  grant  reprieves  and  pardons  for 
offences  against  the  United  States,  except  in  cases  of  impeach- 
ment; (5)  To  veto  Acts  of  Congress,  and  thus  prevent  their 
enactment  unless  adopted  by  two-thirds  of  each  House  after 
hearing  his  objections;  (6)  To  communicate  to  Congress  in- 
formation as  to  the  state  of  the  Union,  and  recommend  to  their 
consideration  such  measures  as  he  shall  judge  necessary  and 
expedient;  (7)  To  convene  Congress  in  a  special  session  upon 
extraordinary  occasions  and,  when  its  Houses  disagree  as  to  the 
time  of  their  adjournment,  to  adjourn  them  to  such  time  as  he 
thinks  proper;  (8)  To  receive  ambassadors  and  other  public 
ministers;  (9)  To  sec  that  all  the  laws  of  the  United  States  are 
faithfully  executed;  (10)  To  protect  the  individual  States  against 
invasion  by  a  foreign  enemy  and  also,  when  requested  by  the 
State,  against  domestic  violence. 

Rem.  Of  these  powers  some  are  definitely  limited,  others  are 
incapable  of  limitation.  As  commander-in-chief  of  the  army  and 
navy  the  President  is,  in  time  of  war,  clothed  with  the  entire  ex- 
ternal sovereignty  of  the  United  States  in  reference  to  the  hostile 
State ;  the  only  potent  cheek  upon  his  operations  being  the  power 
of  Congress  to  withhold  supplies.  His  duty  to  enforce  the  laws 
of  the  United  States  places  at  his  command  all  methods  of  enforce- 
ment which  the  Constitution  does  not  forbid,  and  this  without 
regard  to  the  place  where  or  the  persons  by  whom  the  laws  are 
disregarded.  Indirectly  by  his  power  of  appointment  to  office, 
directly  by  his  veto  power,  he  can  exercise  an  almost  irresistible 
influence  upon  the  course  of  legislation,  and  even  upon  the  action 
of  the  courts.  The  sole  restraint  upon  his  usurpation  or  abuse  of 
power  is  by  his  impeachment  and  removal  from  office. 


472  ELEMENTARY  LAW  §  420 

Read:  1  Bl.  Com.,  pp.  190-196,  233-252,  257-263,  266-273; 
1  Kent  Com.,  Lect.  xiii,  pp.  271-289; 
Walker,  American  Law,  §§  38-43; 
Andrews,  American  Law,  §§  315-325; 
Cooley,  Const.  Law,  pp.  51,  52,  114-122; 
Cooley,  Const.  Lim.,  pp.  19-22; 
Story  on  the  Constitution,  §§  881-891,  1410-1572; 
Miller  on  the  Constitution,  pp.  145-176; 
Tucker  on  the  Constitution,  §§  338-363; 
Bryant  on  the  Constitution,  pp.  206-221. 


§  420.     Of  the  Governmental  Functions  of  the  Individual  States 
of  the  American  Union. 

In  the  individual  States  the  governmental  functions  are  sep- 
arated as  they  are  in  the  United  States;  the  legishitive  being 
exercised  by  a  representative  body  composed  of  two  Houses, 
whose  agreement  is  necessary  to  legislative  action;  the  judicial 
being  discharged  by  courts  established  according  to  law;  the 
executive  being  performed  by  a  governor  and  various  subordi- 
nate officials.  This  separation  is  not,  however,  always  so  com- 
plete as  in  the  case  of  the  United  States;  some  of  the  older 
States  still  recognizing  in  their  legislative  bodies  certain  judicial 
or  executive  powers  which  were  vested  in  them  before  the  States 
adopted  written  constitutions. 

Rem.  The  legislative  function  of  an  individual  State  does  not 
extend  to  any  matter  of  external  sovereignty ;  nor  to  any  mat- 
ter of  internal  sovereignty  which  by  the  Federal  Constitution  is 
placed  within  the  exclusive  jurisdiction  of  the  United  States ;  nor 
to  any  matter  within  the  concurrent  jurisdiction  of  the  State  and 
the  United  States  upon  which  the  legislature  of  the  United  States 
has  already  acted ;  nor  to  any  matter  expressly  or  impliedly  pro- 
hibited to  it  by  the  State  or  Federal  Constitutions ;  nor  to  any 
matter  contrary  to  the  purposes  for  w^iich  the  State  was  organized ; 
nor  to  any  matter  which  infringes  on  the  reserved  rights  of  the 
people  of  the  State,  as  interpreted  by  the  conditions  and  circum- 
stances under  which  the  State  constitution  was  adopted.  The 
judicial  function  of  the  courts  of  a  State  is  conferred  upon  them 
by  its  Constitution  or  by  legislative  acts,  by  which  also  it  is  distrib- 
uted and  defined  both  as  to  its  subjects-matter  and  its  mode  of 
exercise.  State  courts  can  take  ?io  cognizance  of  any  subject  which, 
by  the  Federal  Constitution,  is  placed  within  the  exclusive  juris- 
diction of  the  Federal  courts,  or  of  which  the  Federal  courts  have 
any  jurisdiction  if  Congress  has  made  that  jurisdiction  exclusive, 


§  421  CONSTITUTIONAL  LAW  473 

—  as  has  been  done  in  reference  to  prosecutions  for  offences 
against  the  laws  of  the  United  States,  to  suits  for  penakies  or  for- 
feitures incurred  under  the  laws  of  the  United  States,  to  civil 
causes  in  admiralty  and  seizures  under  the  laws  of  the  United 
States  on  lands  or  waters  outside  its  maritime  jurisdiction,  to 
proceedings  under  a  Federal  Bankrupt  Act,  to  actions  arising 
under  the  Patent  and  Copyright  Laws  of  the  United  States,  and 
to  civil  suits  to  which  a  State  is  a  party  unless  the  suit  is  between 
the  State  and  its  own  citizens,  or  between  the  State  and  citizens 
of  other  States  or  of  a  foreign  country.  Nor  does  the  authority 
of  a  State  court  extend  to  questions  reserved  by  the  State  consti- 
tution for  the  determination  of  its  own  legislative  body;  nor  to 
suits  against  the  State  unless  they  have  been  instituted  with  the 
State's  consent ;  nor  to  persons  or  property  outside  its  territory 
except  so  far  as  these  may  be  affected  by  judicial  orders  and  de- 
crees against  property  or  persons  within  its  territory.  For  the 
most  part,  moreover,  State  courts  are  courts  of  limited  jurisdiction, 
whose  powers  are  enumerated  in  the  Constitution  or  statutes  by 
which  they  are  created.  The  executive  functions  of  the  individual 
States  are  vested  in  their  governors  and  other  officers,  whose 
powers  and  duties  differ  in  the  different  States,  and  are  defined 
and  prescribed  in  their  respective  laws. 

Read:  1  Kent  Com.,  Lcct.  xviii,  pp.  387-404; 

Andrews,  American  Law,  §§  32<>-3G3; 

Clark,  Elementary  Law,  §§  24,  25; 

Cooley,  Const.  Law,  pp.  381-392; 

Cooley,  Const.  Lim.,  pp.  365-418; 

Story  on  the  Constitution,  §§  1353-1409; 

Miller  on  the  Constitution,  pp.  573-597; 

Bryant  on  the  Constitution,  pp.  24.3-282; 

Prentice  and  Egan  on  Commerce  Clause,  pp.  1-46; 

Marshall's  Decisions,  pp.  180-193  (5  Cranch,  App.  115-141),  226- 
251  (4  Wheat.  122-208),  252-298  (4  Wheat.  316-437),  357-420 
(6  Wheat.  264-447),  421-467  (9  Wheat.  1-240),  468-511  (9 
Wheat.  738-903),  512-519  (9  Wheat.  904-914),  520-548  (12 
Wheat.  419-460),  549-585  (12  Wheat.  213-369),  604-616  (2 
Peters,  449-480). 


§  421.     Of  Police  Powers. 

The  police  powers  of  a  State  are  sometimes  spoken  of  as 
if  they  constituted  a  distinct  branch  of  its  sovereignty,  and 
were  exercisable  without  restraint.  They  are,  however,  nothing 
more  than  the  apjilication  in  detail  f)f  its  governmental  functions 
to  those  relations  between  the  State  and  its  subjects  which  are 
essential  to  the  existence  of  the  State,  and  upon  whose  proper 


474  ELEMENTARY   LAW  §  422 

regulation  the  welfare  of  the  entire  people  in  a  large  measure 
depends.  They  extend,  as  a  matter  of  course,  to  every  person, 
to  every  private  and  public  right,  to  every  species  of  property, 
and  to  every  aspect  of  political,  social,  and  individual  life.  They 
are  inherent  in  the  State  as  a  State,  and  cannot  be  curtailed  or 
abrogated  by  any  contract  it  may  make  with  other  States  or 
individuals,  nor  by -the  consequences  which  their  exercise  entails 
upon  its  citizens. 

Rem.  Police  powers  of  a  State  are  subject  to  the  same  consti- 
tutional and  reasonable  limitations  as  any  other  portion  of  its 
sovereignty.  Entrusted,  as  they  often  are,  to  local  communities, 
commissioners,  and  other  public  officers,  they  are  liable  to  gross 
abuse,  and  under  color  of  them  the  most  serious  invasions  of  per- 
sonal rights  may  at  any  time  occur.  Their  cautious  exercise  by 
the  legislature,  and  their  strict  interpretation  by  the  courts,  in 
view  of  the  constitutional  guaranties  of  life,  liberty,  and  prop- 
erty, afford  the  only  safeguards  against  the  degeneration,  by 
apparently  legal  methods,  of  a  popular  government  into  the 
worst  of  despotisms. 

Read:  Cooley,  Const.  Law,  pp.  250-252,  338; 
Cooley,  Const.  Lim.,  pp.  829-890; 

Tiedeman  on  State  and  Federal  Control,  §§  1-5,  10-233; 
Prentice  on  Police  Powers,  pp.  1-82,  267-298,  339-360; 
Moore,  Int.  Law,  §§  190-195. 


§  422.    Of  Subjects:  Allegiance. 

A  subject  is  a  person  who  is  under  a  legal  obligation  to  submit 
himself  to  the  authority  of  the  State  as  to  matters  embraced  in 
its  internal  sovereignty.  The  tie  which  binds  the  subject  to  the 
State  is  called  allegiance,  and  theoretically  originates  in  the  com- 
pact which  is  presumed  to  have  been  made  between  the  subject 
and  the  State  at  the  commencement  of  their  political  relations 
with  each  other.  It  is  of  two  kinds:  Natural  and  Local. 
Natural  allegiance  is  coextensive  with  the  internal  sovereignty  of 
the  State,  and  continues  until  it  is  dissolved  by  the  death  of 
the  subject  or  by  the  lawful  transfer  of  his  natural  allegiance  to 
another  State.  Local  allegiance  imposes  on  the  subject  a  par- 
tial submission  only  to  the  internal  sovereignty  of  the  State  in 
which  he  temporarily  resides,  and  ceases  when  he  departs  from 
its  territorial  domain. 


§  423  CONSTITUTIONAL  LAW  475 

Rem.  Judged  by  the  character  of  their  allegiance  subjects  are 
of  two  classes:  Citizens  and  Aliens.  A  citizen  is  a  person  who  is 
bound  to  the  State  by  the  tie  of  natural  allegiance,  and  over  whom 
all  the  powers  contained  in  its  internal  sovereignty  may  be  exer- 
cised. An  alien  is  a  citizen  of  a  foreign  country,  residing  in  the 
State  and  while  within  its  borders  owing  it  a  local  allegiance,  and 
subject  to  it  in  certain  matters  included  in  its  sovereignty.  An 
alien  friend  is  an  alien  with  whose  State  the  State  where  he  re- 
sides is  at  peace.  An  alien  enemy  is  an  alien  with  whose  own  State 
the  State  where  he  resides  is  at  war. 

Read:  1  Bl.  Com.,  pp.  366-375; 

2  Kent  Com.,  Lect.  xxv,  pp.  39-42,  50; 
Woolsey,  Int.  Law,  §§  65-70; 
Davis,  Int.  Law,  pp.  135-156; 
Moore,  Int.  Law,  §§  534-566; 
Morse  on  Citizenship,  §§  5-16; 
Webster  on  Citizenship,  pp.  1-11,  49. 

§  423.     Of  Citizens. 

The  citizens  of  a  State  are  the  actual  members  of  the  political 
body  to  which  they  belong.  They  constitute  the  people  who 
compose  the  legal  community,  and  who  in  their  associated  cap- 
acity have  established  or  submitted  themselves  to  the  dominion 
of  a  government,  for  the  preservation  of  their  general  welfare 
and  the  protection  of  their  individual  as  well  as  their  collective 
rights.  Persons  become  citizens  either  by  birth  or  by  adoption. 
Every  person  who  is  horn  both  within  the  dominions  and  under 
the  jurisdiction  of  a  State,  is  thereby  made  one  of  its  citizens. 
The  dominions  of  a  State  include  its  territorial  area,  the  vessels 
which  sail  under  its  flag,  and  in  a  limited  sense  the  premises 
occupied  by  its  ambassadors  and  ministers  at  foreign  courts. 
The  jurisdiction  of  a  State  covers  all  persons  within  its  dominions 
except  the  diplomatic  representatives  of  foreign  States  with 
their  attendants.  It  has  indeed  been  claimed  by  certain  States 
that  birth  either  witiiin  the  jurisdiction  or  the  dominions  of  a 
State  confers  citizenship ;  that  their  citizens  remain  within  their 
jurisdiction  even  when  temporarily  residing  in  foreign  States; 
and  consequently  that  children  born  to  their  own  citizens  while 
abroad  acquire  the  citizenshij)  of  their  parents  and  may  assert 
its  privileges  upon  returning  to  the  parental  State.  Other  States 
have  refused  to  recognize  this  claim  as  having  any  legal  basis; 
and  where  they  have  consented  to  treat  siicli  children  as  belong- 


476  ELEMENTARY  LAW  §  424 

ing  to  the  parental  State,  and  entitled  to  the  protection  afforded 
by  its  laws,  they  have  regarded  their  action  as  a  voluntary  con- 
cession to  the  parental  State  in  a  spirit  of  international  comity, 
rather  than  as  an  admission  of  the  right  of  such  children  to 
deny  their  natural  allegiance  to  the  State  where  they  were  born. 
The  adojition  of  a  citizen  of  a  foreign  State  consists  in  the  trans- 
fer by  the  citizen  of  his  natural  allegiance  from  one  State  to 
another,  and  its  acceptance  by  the  State  to  which  it  is  transferred. 
No  one  can  become  a  citizen  or  even  a  resident  of  a  foreign 
State  against  its  will.  Until  within  the  past  century  it  was  also 
a  universal  doctrine  that  no  citizen  could  transfer  his  natural 
allegiance  without  the  permission  of  his  native  State;  but  this 
doctrine  has  been  gradually  modified  by  treaties  and  interna- 
tional custom  until  the  right  to  change  allegiance  with  the  consent 
of  the  adopting  State  is  now  generally  recognized.  Each  State 
determines  for  itself  the  conditions  on  which  it  will  receive  the 
citizens  of  foreign  States  as  its  own  citizens,  or  even  as  mere 
temporary  subjects,  and  may  when  it  deems  best  exclude  them 
altogether. 

Rem.  Citizenship  does  not  imply  equality  of  political  privi- 
leges irrespective  of  status.  Such  privileges  depend  upon  the 
governmental  system  of  the  State,  and  may  vary  with  different 
classes  of  the  people.  That  adopted  citizens  are  ineligible  to 
certain  offices ;  that  women  and  children  have  no  right  to  vote ; 
that  residents  of  unorganized  territory  cannot  participate  in  the 
conduct  of  the  government,  —  does  not  deprive  them  of  any  attri- 
bute of  citizenship,  nor  disturb  that  equality  of  political  rights  as 
to  which  all  citizens,  as  individuals,  are  alike  before  the  law. 

Read:  2  Kent  Com.,  Lect.  xxv,  pp.  42-50,  51-53; 
Cooley,  Const.  Law,  pp.  88,  89,  271 ; 
Wharton,  Int.  Law,  §§  171,  172  a,  176-182; 
Glenn,  Int.  Law,  §§  92-95; 
Davis,  Int.  Law,  pp.  135-151 ; 
Moore,  Int.  Law,  §§  372-376,  426-483; 
Morse  on  Citizenship,  §§  18-85; 
Webster  on  Citizenship,  pp.  11-19,  50-53,  63-129. 

§  424.     Of  the  Citizens  of  the  United  States. 

All  persons  who  are  born  within  the  dominions  of  the  United 
States,  except  Indians  and  the  children  of  the  families  of  the 
official   representatives  of  foreign  nations,   are  citizens  of  the 


§  424  CONSTITUTIONAL  LAW  477 

United  States.  The  adoption  of  citizens  of  foreign  countries 
into  the  United  States  may  be  effected  either  by  an  Act  of  Con- 
gress, admitting  into  the  Union  an  organized  territory  with  its 
existing  po|)ulation ;  or  by  a((|uiring,  and  organizing  under  a 
governmental  system,  a  foreign  territory  with  its  people;  or  by 
special  laws  conferring  citizenship  on  certain  individuals;  or 
by  general  laws  under  whose  operation  any  person,  who  complies 
with  their  conditions,  can  become  a  citizen.  These  general 
laws  are  commonly  called  the  "naturalization  laws.''  The  con- 
ditions they  prescribe  vary  from  time  to  time  according  to  the 
views  of  Congress  in  reference  to  the  welfare  of  the  State. 

Rem.  The  naturalization  regulations  now  in  force  provide 
for  the  admission  to  citizcnsliip  of  the  following  persons:  (1) 
Adult  aliens,  resident  in  this  country  for  not  less  tiian  five  years, 
who  legally  declared  their  intention  to  become  citizens  two  years 
before  their  application  for  admission ;  (2)  Adult  aliens  who 
have  resided  in  this  country  for  a  continuous  period  of  five  years, 
three  of  which  were  during  their  minority;  (3)  Adult  aliens  who 
have  been  honorably  discharged  from  the  military  or  naval 
service  of  the  United  States ;  (4)  Adult  seamen  who  have  served 
for  three  years  on  merchant  vessels  of  the  United  States  after  de- 
claring their  intention  to  become  citizens ;  (5)  The  widows  and 
chilclren  of  deceased  aliens  who  in  their  lifetime  legally  declared 
their  intention  to  become  citizens ;  (6)  The  wives  and  infant  chil- 
dren of  adopted  citizens.  Some  of  these  persons,  siich  as  the 
wives  and  minor  children  of  adopted  citizens,  become  citizens  of 
the  United  States  by  operation  of  law.  Others,  like  the  adult 
alien  residents,  must  be  formally  admitted  by  a  court  of  record 
upon  their  oath  abjuring  their  allegiance  to  their  native  State,  and 
pledging  their  allegiance  to  the  United  States.  Over  the  whole 
system  of  naturahzation,  as  a  method  of  adopting  citizens  into 
the  United  States,  Congress  has  exclusive  jurisdiction  although 
it  frecjuently  employs,  with  their  consent,  the  governmental 
agencies  of  the  individual  States  for  its  administration. 

Read:  Rob.  Am.  Jur.,  §§  54-73; 
Walker,  American  Law,  §  54 ; 
Clark,  Klementary  Law,  §  26; 
Cooley,  Const.  Law,  pp.  2G8-271 ; 
Wharton,  Int.  Law,  §§  173-175,  183-188; 
Glenn,  Int.  Law,  §§  y(i-<)9; 
Moore,  Int.  Law,  §§  377-425; 
Mor.se  on  Citizenship,  §§  86-1.30; 
Webster  on  Citizenship,  pp.  129-162,  295-300; 
Webster  on  Naturalization,  pp.  1-107; 
Miller  on  the  Constitution,  pp.  275-308. 


478  ELEMENTARY  LAW  §§  425,  426 

§  425.     Of  the  Citizens  of  the  Individual  States  of  the  American 
Union. 

All  citizens  of  the  United  States  are  citizens  of  the  individual 
State  in  which  they  were  born  or  naturalized,  or  within  which 
they  have  since  become  permanently  domiciled.  The  allegiance 
of  a  citizen  to  his  particular  State  renders  him  subject  to  its 
complete  internal  sovereignty,  and  continues  until  by  his  removal 
to  another  State  he  becomes  a  citizen  therein.  The  inhabitants 
of  territories,  and  of  districts  ceded  to  the  United  States,  are 
citizens  of  the  United  States  alone,  and  enjoy  only  such  political 
rights  as  are  conferred  upon  them  by  the  Federal  Constitution 
and  the  Acts  of  Congress. 

Rem.  No  individual  State  can  confer  true  citizenship  except 
upon  a  citizen  of  the  United  States,  though  grants  of  certain 
special  privileges  to  ahens,  in  reference  to  personal  or  property 
rights,  are  not  invalid. 

Read:  Rob.  Am.  Jur.,  §  57; 

Cooley,  Const.  Law,  pp.  206-208,  272-275; 

Morse  on  Citizenship,  §§  210-247; 

Webster  on  Naturalization,  pp.  108-120; 

Tiedeman  on  the  Unwritten  Constitution,  pp.  91-109. 


$  426.     Of   the   Rights   of    the   State   over   the    Persons  of  its 
Subjects. 

The  rights  of  a  State  over  the  persons  of  its  subjects  are  two- 
fold: (1)  The  right  to  their  obedience;  and  (2)  The  right  to 
their  support.  Obedience  to  the  State  includes  obedience  to  all 
laws  made  by  the  legislature  in  the  legitimate  exercise  of  its 
governmental  functions;  obedience  to  all  valid  judicial  orders 
and  decrees;  and  obedience  to  executive  officers  when  acting 
within  the  scope  of  their  lawful  authority.  Support  to  the  State 
includes  all  forms  of  obligatory  personal  service  rendered  to  the 
State,  whether  by  action  or  forbearance;  as,  for  example,  in 
its  military  or  naval  forces,  in  aiding  officers  to  capture  criminals 
or  levy  civil  process,  or  in  the  performance  of  jury  duty.  The 
right  to  obedience  and  support  implies  the  right  to  compel  them ; 
for  which  purpose  every  State  has  the  incidental  right  to  coerce 
the  liBwilling  and  punish  the  disobedient. 


§  427  CONSTITUTIONAL  LAW  479 

Rem.  Not  to  an  equal  extent,  however,  are  citizens  and  aliens 
affected  by  these  rights.  Laws  which  prohibit  action  bind  all 
subjects  alike;  those  which  command  action  bind  aliens  only  so 
far  as  the  prescribed  action  may  be  consistent  with  their  duty  to 
their  own  States.  The  limits  of  the  personal  service  which  the 
State  may  require  from  its  own  citizens  are  fixed  by  its  Constitu- 
tion ;  those  which  it  may  recjuire  from  an  alien  are  determined 
partly  by  its  constitution  and  partly  by  its  treaties,  by  the  usages 
of  nations,  and  by  the  conditions  on  which  it  may  have  ad- 
mitted him  to  reside  within  its  borders.  Hence,  as  a  general 
rule,  an  alien  is  not  allowed  to  participate  in  political  affairs,  nor 
obliged  to  serve  in  any  public  capacity,  although  in  reference  to 
private  duties  he  may  occupy  the  same  position  as  a  citizen. 

Read:  2  Kent  Com.,  Lect.  xxv,  pp.  53-73. 

§  427.  Of  the  Rights  of  the  State  over  the  Property  of  its 
Subjects. 
Property  derives  its  principal  value  from  the  protection  which 
it  receives  from  the  State,  and  from  the  laws  by  which  its  ac- 
quisition, enjoyment,  and  transfer  are  controlled.  The  right 
of  the  State  to  take,  in  return  for  that  protection,  so  much  of  the 
property  of  its  subjects  as  might  be  necessary  for  its  own  main- 
tenance has  never  been  seriously  questioned.  This  right  may  be 
exercised  either  (1)  By  taking  and  disposing  of  the  property 
itself;  or  (2)  By  compelling  the  owner  of  the  property  to  pay 
into  the  public  treasury  a  sum  of  money  bearing  some  proportion 
to  the  value  of  the  property.  One  form  of  taking  and  disposing 
of  the  property  is  that  of  eminent  domaii},  which,  under  our 
American  constitutions,  is  lawful  only  when  the  property  is 
clearly  necessary  for  public  use,  and  when  just  compensation  is 
made  to  its  owner.  Another  form  is  that  of  the  destruction  of 
private  properti/  by  the  State  in  the  exercise  of  its  police  powers ; 
as,  for  example,  to  stay  a  conflagration  or  remove  a  nuisance 
to  public  health.  In  cases  of  necessity  the  State  is  doubtless 
warranted  in  such  destruction ;  either  upon  the  ground  that 
under  extreme  circumstances  the  objects  lose  their  character 
as  property  and  are  no  longer  entitled  to  protection;  or  in 
obedience  to  the  principle  that  when  a  private  and  a  public 
interest  are  in  conflict  the  private  interest  must  always  yield. 
But  the  necessity  in  such  cases  must  be  apparent  and  inexorable, 
and  even  then  it  mav  be  doubted  whether  iusticc  and  the  true 


480  ELEMENTARY  LAW  §  427 

spirit  of  our  laws  do  not  require  a  compensation  to  the  owner 
of  tlie  property  unless  he  has  been  himself  in  fault.  The  levy 
of  a  specific  sum  upon  the  owner  of  property  in  proportion  to 
its  value  is  taxation,  and  this  includes  all  forms  of  duties,  imposts, 
excises,  and  other  assessments  regularly  laid  and  collected  for 
public  purposes.  Under  the  American  constitutions  all  arbitrary 
levies  upon  individuals  or  classes  of  the  people,  all  assessments 
for  private  purposes,  and  all  taxation  which  does  not  rest  upon 
the  principle  that  public  burdens  ought  to  be  borne  equally  by 
the  whole  people,  or  does  not  in  practical  effect  approximate  to 
that  equality  of  distribution,  are  invalid.  With  reference  to  its 
liability  to  taxation  property  includes  not  only  existing  things, 
corporeal  and  incorporeal,  but  all  agencies  and  enterprises 
intended  and  calculated  to  result  in  the  production  of  property; 
and  on  this  ground  trades,  professions,  and  even  the  polls  or 
personal  energies  of  individuals  are  taxable. 

Rem.  What  property  shall  be  taxed,  and  to  what  extent  and 
in  what  method,  every  State  through  its  legislative  body  de- 
cides for  itself,  subject  to  its  constitutional  restrictions.  The 
Federal  Constitution  requires  that  direct  taxes,  —  or  taxes  upon 
polls  or  land  or  personal  property  or  upon  the  income  of  real  or 
personal  property,  —  when  levied  by  the  United  States,  shall 
be  apportioned  among  the  individual  States  according  to  the 
immber  of  their  representatives  in  Congress.  It  also  provides 
that  indirect  taxes  —  or  duties  upon  imports  from  foreign  coun- 
tries —  may  be  levied  by  the  United  States  at  its  discretion ;  but 
that  the  individual  States  shall  lay  no  taxes  upon  exports  or 
imports  without  the  consent  of  Congress.  The  constitutions  of 
the  different  States  vary  in  their  restrictions,  but  with  a  general 
tendency  to  leave  the  entire  matter  of  taxation,  as  far  as  practi- 
cable, to  the  current  discretion  of  the  legislature.  Neither  the 
States  nor  the  United  States  can  tax,  indirectly  or  directly,  the 
governmental  property  or  machinery  of  one  another,  such  as 
the  salaries  of  officers  or  the  franchises  of  public  corporations. 
The  assessment  of  benefits  for  local  improvements  upon  the 
owners  of  the  neighboring  property,  though  an  exercise  in  part 
at  least  of  the  taxing  power,  is  not  strictly  taxation,  but  rather 
an  interference  of  the  State  to  adjust  the  mutual  relations  of 
owners  of  property  under  circumstances  which  impose  on  them 
a  common  burden,  but  where  their  concerted  action  is  impossible. 
The  property  of  aliens,  equally  with  that  of  citizens,  is  subject 
to  police  powers,  assessments,  taxation,  and  eminent  domain. 


§  428  CONSTITUTIONAL  LAW  481 

Read:  1  Bl.  Com.,  pp.  308-337; 
3  Bl.  Com.,  pp.  257-265; 
Cooley,  Const.  Law,  pp.  55-64,  363-377; 
Cooley,  Const.  Lim.,  pp.  678-826; 
Hare,  Const.  Law,  pp.  241-422; 
Miller  on  the  Constitution,  pp.  227-261; 
Marshall's  Decisions,  pp.  339-351  (5  Wheat.  317-325). 


§  428.     Of  the  Rights  of  the  Collective  People  against  the  State. 

The  only  right  of  the  collective  -people  against  the  State  is  the 
right  of  revolution ;  all  other  rights  against  the  State  reside  in 
individual  subjects  and  are  enforcible  on  their  behalf.  The 
right  of  revolution  is  the  right  of  the  people  to  change  the  gov- 
ernmental system  of  the  State.  This  right  is  fundamental  and 
inalienable,  and  rests  on  the  nature  of  a  poHtical  .society  and  its 
necessary  relations  to  the  persons  of  whom  it  is  composed.  It 
resides  in  the  peo|)le  collectively  and  cannot  be  exercised  by  any 
number  less  than  the  whole.  It  is  exercised  by  the  whole  when 
they  act  by  a  lawful  majority,  or  when  the  action  of  a  part  is 
accepted  as  a  finality  by  the  rest.  To  the  collective  people  only 
citizens  belong;  an  alien  cannot  rightfully  participate  in  a  revo- 
lution. A  revolution  may  involve  the  entire  governmental  system 
of  the  State  or  any  one  of  its  integral  portions,  and  may  be  either 
peaceable  or  by  force  of  arms.  A  peaceable  revolution  is  effected 
when  the  people,  by  the  ordinary  methods  of  deliberation  antl 
decision,  change  the  framework  of  their  government.  A  forcible 
revolution  begins  as  a  rebellion  against  the  existing  government, 
rendering  its  promoters  guilty  of  the  crime  of  treason ;  but  if 
successful  it  becomes  a  revolution,  and  liabilit}'  for  the  trea- 
son vanishes  with  the  ilisaj)peara!ice  of  the  government  against 
which  it  was  committed.  In  every  forcible  revolution  the  actors 
assume  the  risk  of  failure  and  their  consequent  punishment, 
but  in  every  form  of  State  an  emergency  is  likely  to  arise  where 
the  people  are  confronted  with  the  alternative  of  armed  resist- 
ance or  the  lo.ss  of  liberty.  A  forcible  revolution  is  subject  to 
no  limitations.  If  it  succeeds,  all  laws  and  constitutions  based 
upon  the  delegated  sovereignty  of  the  former  State  are  ipso  facto 
abrogated,  and  all  sovereignty  is  revested  in  the  collective  pi'ople 
who  may  then  create  a  new  governmental  system  without  ref- 
erence to  the  old. 

31 


482  ELEMENTARY  LAW  §  429 

Rem.  In  the  governments  of  the  United  States,  and  in  the 
individual  States  of  the  American  Union,  a  peaceable  revolution 
is  accomplished  by  altering  their  respective  constitutions  in  the 
manner  provided  by  the  constitutions  themselves.  The  Federal 
Constitution  can  thus  be  amended  to  any  extent,  even  to  the 
abolition  of  the  present  form  of  government  and  the  substitution 
of  any  other  in  its  stead.  The  individual  States  are  limited  in  their 
revolutionary  action  by  the  Federal  Constitution.  Unless  that 
constitution  is  first  amended,  by  the  act  of  the  entire  people  of  the 
United  States,  the  people  of  an  individual  State  cannot  so  modify 
their  own  State  constitution  as  to  depart  from  the  republican 
form  of  government,  or  to  withdraw  from  the  Union,  or  to  usurp 
any  of  the  powers  reserved  to  the  United  States,  or  to  invade 
the  personal  rights  guaranteed  to  all  the  people  by  the  Federal 
Constitution. 

Read:  1  Bl.  Com.,  pp.  160-162; 

1  Woolsey,  Political  Science,  pp.  402-430; 

Davis,  Int.  Law,  p.  43; 

Cooley,  Const.  Law,  pp.  24-26; 

Story  on  the  Constitution,  §§  1813-1831. 


§  429.     Of  the  Rights  of  Individual  Subjects  against  the  State: 
the  Right  to  Protection. 

The  rights  of  individual  subjects  against  the  State  are:  (1) 
The  right  to  Protection ;  and  (2)  The  right  to  Redress.  These 
rights  belong  to  the  subject  by  virtue  of  that  tie  of  allegiance 
which  binds  him  to  the  State,  and  measure  the  obligations 
toward  him  which  the  State  assumed  in  that  original  compact 
whereby  they  became  politically  related  to  each  other.  The 
right  to  protection  includes  the  right  to  protection  against  wrongs 
at  the  hands  of  co-subjects;  the  right  to  protection  against 
wrongs  at  the  hands  of  the  State  itself  or  its  governmental 
agents ;  and  the  right  to  protection  against  wrongs  at  the  hands 
of  foreign  States,  their  officers  and  citizens.  As  the  State  is 
organized  for  the  purpose  of  securing  the  natural  rights  of  its 
citizens,  and  as  the  sole  consideration  offered  to  the  citizen  for 
the  surrender  of  his  individual  and  inherent  authority  to  pro- 
tect his  rights  by  force  is  the  undertaking  of  the  State  to  discharge 
that  function  on  his  behalf,  so  it  is  the  manifest  and  inexorable 
duty  of  the  State  to  enact  laws  defining  and  asserting  all  such 
rights,  and  prohibiting  their  violation  by  any  other  person  who 
may  be  subject  to  its  jurisdiction.    Again,  all  wrongs  committed 


§  429  CONSTITUTIONAL   LAW  483 

by  a  State  or  its  governmental  agents  against  its  citizens  originate 
either  in  its  defective  constitution,  or  in  a  usurpation  or  abuse  of 
power.  If  the  constitution  of  a  State  is  not  adapted  to  the  re- 
quirements of  its  people,  the  more  faithfully  it  is  administerec 
the  more  grievous  is  the  infringement  of  their  rights.  The  rem- 
edy in  this  case  lies  viith  the  people  who,  by  the  amendment  of 
their  constitution,  can  escape  from  further  injury.  Usurpations 
and  abuses  of  power  by  governmental  agents  are  practically 
unpreventable  by  prohibitory  laws,  but  the  inducements  to  them 
may  be  so  far  removed  by  mse  legislation  that  neither  for  per- 
sonal or  political  ends  they  will  be  undertaken.  Again,  wrongs 
may  be  committed  by  one  State  against  a  citizen  of  another 
State  either  by  its  direct  governmental  act,  or  through  its  publi' 
officers,  or  by  sanctioning  and  thereby  adopting  a  wrong  inflicted 
on  him  by  its  own  subjects.  A  tort  or  crime  perpetrated  by  the 
subject  of  one  State  against  the  citizen  of  another  State  is,  in 
its  inception,  a*  mere  private  wrong  against  which  the  injured 
party  is  entitled  to  the  same  protection  and  redress  as  if  both 
he  and  the  wrongdoer  were  co-subjects  of  the  State  in  which  the 
wrong  has  been  committed.  But  when  the  injured  party,  seek- 
ing the  vindication  of  his  right  in  the  manner  customary  in  that 
country  of  which  the  offender  is  a  citizen,  is  there  unlawfully 
denied  redress,  the  wrong  becomes  the  act  of  the  foreign  State 
itself  by  virtue  of  the  sanction  which  it  thus  receives.  Against 
such  adopted  wrongs,  as  well  as  against  those  directly  inflicted 
by  a  foreign  State  or  its  official  agents,  it  is  the  duty  of  every 
State  to  protect  its  own  citizens  by  maintaining  against  other 
States  a  firm  and  persistent  policy,  —  not  only  demanding  their 
recognition  of  the  rights  of  its  citizens,  but  also  compelling 
satisfaction   for  their  wrongs. 

Rem.  Natural  rights  become  legal  rights  through  their  defini- 
tion and  enforcement  by  the  action  of  the  State;  and  therefore 
wherever  the  natural  rights  of  tiie  subject  are  not  fully  protected 
the  fault  lies  with  the  governmental  system  of  the  State,  or  with 
its  administration,  and  is  discoverable  either  in  the  laws  of  the 
State  or  in  their  mode  of  execution.  In  every  popular  or  repre- 
sentative government  the  responsibility  for  such  conditions  rests 
upon  the  people  who  can,  if  they  will,  amend  their  laws  and 
select  proper  officers  for  their  enforcement. 


484  ELEMENTARY  LAW  §  430 

Read:  1  Bl.  Com.,  pp.  52,  53; 
Rob.  Am.  Jur.,  §§  167-170; 

Cooley,  Const.  Law,  pp.  224-250,  252-267,  294-309; 
Cooley,  Const.  Lim.,  pp.  596-677; 
Story  on  the  Constitution,  §§  1857-1905; 
Bryant  on  the  Constitution,  pp.  330-342; 
Morse  on  Citizenship,  §§  131-206; 
Webster  on  Citizenship,  pp.  162-180. 


§  430.     Of  the  Rights  of  Individual  Subjects  against  the  State: 
the  Bight  to  Redress. 

The  right  to  redress  is  the  necessary  complement  of  the  right 
to  protection,  and  where  protection  fails  it  is  the  duty  of  the 
State  to  provide  and  apply  a  remedy  for  the  injuries  which  it 
has  been  unable  to  prevent.  By  entering  into  political  society, 
and  uniting  with  other  individuals  to  form  the  State,  the  citizen 
also  waives'his  natural  right  to  seek  a  forcible  remedy  for  injuries, 
except  in  a  few  extreme  emergencies,  and  renders  himself  de- 
pendent on  the  State  for  his  redress.  This  redress  the  State  is, 
therefore,  under  a  supreme  obligation  to  afford.  In  modern  States 
redress  for  injuries  committed  by  co-subjects  is  usually  awarded 
against  the  person  or  property  of  the  wrongdoer,  through  the 
agency  of  certain  tribunals  which  can  inquire  into  the  natiire  of 
the  injury ;  its  cause,  extent,  and  consequences ;  and  determine 
what  and  by  whom  compensation  must  be  made.  Hence  it  is 
the  dull/  of  the  State  to  establish  a  sufficient  number  of  these 
tribunals,  easily  accessible  to  the  people,  in  which  relief  can  be 
obtained  with  certainty,  with  justice,  and  without  unnecessary 
expense  or  delay.  It  is  also  the  duty  of  the  State  to  provide  by 
appropriate  legislation  against  fraudulent  concealments  of  person 
or  property  tending  to  defeat  the  ends  of  justice,  and  to  inflict 
public  penalties  for  wrongs  which  in  their  nature  are  grievously 
injurious  or  are  of  dangerous  example.  Wrongs  committed  by 
the  State  through  its  governmental  agents,  when  in  their  nature 
they  are  torts  or  crimes,  are  redressed  by  the  courts  in  actions 
or  prosecutions  against  the  offending  parties,  in  the  same  manner 
as  in  wrongs  inflicted  by  co-subjects.  The  State  itself,  however, 
is  not  amenable  to  suit  for  any  wrong,  except  by  its  own  consent, 
nor  is  it  liable  for  the  misconduct  of  its  officers.  The  remedy 
for  the  injured  party,  in  such  cases,  is  to  petition  for  redress; 


§  430  CONSTITUTIONAL  LAW  485 

and  if  this  is  refused  no  further  reUef  is  obtainable.  When  dam- 
age is  occasioned  by  public  officers,  acting  within  the  scope  of 
their  authority,  or  in  obedience  to  the  lawful  commands  of  their 
legitimate  superiors,  no  legal  obligation  to  afford  a  remedy  rests 
upon  the  State  because  no  legal  wrong  has  been  committed, 
although  it  may  make  compensation  to  the  injured  party  on  the 
ground  of  natural  justice.  Against  oppressive  legislation  there 
is  also  no  direct  redress  unless  it  transcends  the  constitutional 
powers  of  the  legislative  body,  and  on  that  account  can  be  de- 
dared  invalid  by  the  courts.  Should  all  departments  of  the 
government  combine  against  the  citizen,  nothing  remains  except 
to  wait  until  the  wrong  becomes  so  serious  and  universal  as  to 
warrant  and  provoke  the  exercise  of  the  right  of  revolution.  The 
wrongs  committed  by  the  subjects  of  one  State  against  the  citizens 
of  another  State,  being  as  between  the  parties  merely  private 
wrongs,  the  remedy  therefor  is  to  be  sought,  in  the  first  instance, 
in  the  courts  having  jurisdiction  over  the  parties  and  the  subject- 
matter  of  the  controversy.  If  such  jurisdiction  resides  only 
in  the  courts  of  the  State  of  which  the  wrongdoer  is  a  citizen, 
and  they  deny  to  the  injured  party  the  relief  which  it  is  their 
custom  to  afford  in  such  cases,  and  the  wrong  thus  becomes 
adopted  by  the  foreign  State,  it  is  the  duty  of  the  State  of  which 
the  injured  party  is  a  citizen  to  demand  directly  from  the  foreign 
State  a  reparation  for  the  injury,  and  to  enforce  its  demand, 
if  necessary,  by  war.  This  also  is  the  only  remedy  when  the 
citizen  of  one  State  is  injured  by  the  direct  action  of  a  foreign 
State. 

Rem.  The  foregoing  rights  belong  in  their  widest  extent  to 
the  citizen  alone.  Complete  j^rotection  and  vindication  in  all  iiis 
legal  rights,  at  all  times,  in  all  places,  and  at  all  hazards,  are  due 
to  him  ;  and  the  State  which  withholds  these  breaks  tiie  compact 
out  of  which  its  own  existence  sprang,  and  is  unfaithful  to  its 
obligations  to  its  citizens.  The  resident  alien,  on  the  other  hand, 
has  no  right  to  protection  or  redress  against  a  foreign  State,  ex- 
cept from  the  State  to  which  he  owes  a  natural  allegiance.  If 
he  is  an  alien  frienfl  the  State  where  he  resides  is  bound  to  pro- 
tect him  against  wrongs  from  itsi-lf  and  its  own  subjects,  and  to 
afford  to  him  the  usual  remedit-s  in  local  courts  of  justice.  If  he 
becomes  an  alien  enemy  these  rights,  as  a  matter  of  strict  law,  are 
suspended ;    but  long  established  custom  recognizes  his  natural 


486  ELEMENTARY  LAW  §  430 

right  to  be  treated  as  an  alien  friend  until  he  manifests  his  per- 
sonal hostility  toward  the  State,  or  is  formally  notified  to  leave 
its  territory. 

Read:  3  Bl.  Com.,  pp.  254-257; 

Wharton,  Int.  Law,  §§  189,  190,  201-207; 
Woolsey,  Int.  Law,  §§  65-70; 
Webster  on  Citizenship,  pp.  289-295- 


§  431  INTERNATIONAL   LAW  487 


CHAPTER   II 

OF  THE  LAW  OF  EXTERNAL  SOVEREIGNTY  : 
INTERNATIONAL  LAW 

§  431.     Of  the  Nature  of  External  Sovereignty. 

External  sovereignty  consists  of  those  powers  which  sovereign 
States  may  rightfully  exercise  with  reference  to  other  sovereign 
States,  or  toward  those  territories,  persons,  or  communities 
which  are  not  embraced  within  the  jurisdiction  of  any  sovereign 
State.  These  powers  may  originate  either:  (1)  In  the  inherent 
character  of  a  sovereign  State,  as  such;  or  (2)  In  the  essential 
relations,  voluntarily  established  between  it  and  the  other  mem- 
bers of  the  family  of  nations ;  or  (3)  In  the  rules  and  usages  of 
international  law;  or  (4)  In  the  principles  and  precepts  of  the 
natural  law.  That  ingredient  of  external  sovereignty  which 
originates  in  the  inherent  character  of  a  sovereign  State,  as  such, 
is  its  independence  of  all  exterior  political  control;  since  a  sov- 
ereign State  can  have  no  superior  by  whom  it  is  directed  or  to 
whom  it  is  accountable.  That  ingredient  which  is  derived  from 
the  relations,  voluntarily  established  between  it  and  the  other 
members  of  the  family  of  nations,  is  its  political  equality  with  each 
and  all  of  them.  Those  ingredients  of  external  sovereignty  which 
are  created  by  the  rules  and  usages  of  international  law  vary  with 
the  development  of  that  body  of  law,  and  affect  only  the  mem- 
bers of  the  family  of  nations  in  their  reciprocal  relations  with 
one  another.  Those  ingredients  which  rest  upon  the  principles 
and  precepts  of  the  natural  law  comprise  the  rights  of  the 
State  against  political  communities  and  unorganized  populations 
which  are  not  within  the  family  of  nations,  and  against  the  mem- 
bers of  that  family  in  emergencies  for  which  the  rules  of  inter- 
national law  do  not  provide. 

Rem.  Political  equality  does  not  depend  upon  the  size  or 
strength  or  antiquity  of  a  State,  nor  does  it  arise  ipso  facto  out  of 


488  ELEMENTARY  LAW  §  432 

its  independence,  but  results  from  its  admission  into  the  family 
of  nations.  The  "family  of  nations"  is  composed  of  those  States 
which,  in  the  course  of  ages,  have  come  to  recognize  one  another 
as  coequal  sovereignties,  and  have  adopted  as  the  measure  of  their 
mutual  obligations  the  rules  which  constitute  the  international 
law.  Formerly  the  Christian  States  alone  were  embraced  within 
this  family,  but  with  the  extension  of  modern  commerce  others 
have  from  time  to  time  been  admitted.  Prior  to  such  admission 
political  communities  have  no  national  rights  against  the  family 
of  nations,  or  any  of  its  members,  except  those  which  they  have 
the  physical  ability  to  maintain ;  and  are  neither  governed  nor 
protected  by  the  rules  of  international  law.  By  their  admission 
they  become  politically  equal  to  the  other  members  of  the  family 
in  all  the  attributes  of  sovereignty,  both  external  and  internal, 
and  are  governed  by  the  rules  of  international  as  well  as  natural 
law.  Natural  law  is  the  law  of  reason  and  justice,  and  is  binding 
on  both  States  and  individuals.  That  nations  in  the  indulgence 
of  their  selfish  lusts  or  political  ambitions  sometimes  depart 
therefrom,  especially  in  their  dealings  with  weak  communities 
outside  the  family  of  nations,  neither  enlarges  their  legitimate 
rights  nor  restricts  their  public  duties. 

Read:  1  Kent  Com.,  Lect.  ii,  pp.  21-23; 
Walker,  American  Law,  §§  295-302; 
Wharton,  American  Law,  §§  140-145; 
Wheaton,  Int.  Law,  §§  22,  77-94,  152,  158; 
Wharton,  Int.  Law,  §  1; 
Woolsey,  Int.  Law,  §§  1-8,  9-17,  36,  37,  52; 
Pomeroy,  Int.  Law,  §§  47-58; 
Glenn,  Int.  Law,  §§  1-4,  19,  24,  32; 
Davis,  Int.  Law,  pp.  1-29,  34-36,  39; 
Moore,  Int.  Law,  §§  3,  4,  24. 


§  432.     Of  Complete  and  Incomplete  External  Sovereignty. 

Although  theoretically  incapable  of  limitation  the  external  sov- 
ereignty of  a  State  may  practically  be  incomplete.  Thus  while 
certain  States  are  entirely  independent  and  coequal,  possessing 
and  enjoying  in  its  fulness  every  ingredient  of  external  sover- 
eignty, some  States  have  voluntarily  surrendered  a  portion  of  their 
powers  and  entered  into  relations  with  other  States  which,  for  the 
time  at  least,  restrict  their  own  external  sovereignty.  These  mod- 
ifications of  external  sovereignty  have  frequently  arisen,  and  may 
at  any  time  be  reproduced  by  the  necessities  of  peaceful  States,  or 
the  uncertain  influence  of  war. 


§  433  INTERNATIONAL    LAW  489 

Rem.  Instances  of  tliis  restriction  of  external  sovereignty 
occur  where  States  combine  into  a  federal  union,  and  delegate 
external  sovereignty  to  the  new  State  which  they  compose;  or 
where  States  form  an  alliance  and  confer  upon  some  central 
authority  the  sole  right  to  negotiate  treaties,  make  peace,  and 
declare  war;  or  where  one  State  assumes  a  ■protectorate  over 
another  at  the  request  of  the  protected  State  or  of  the  family  of 
nations,  and  so  exercises  on  its  behalf  the  power  of  peace  or  war; 
or  where  the  family  of  nations  determines  that  certain  weaker 
States  shall,  for  their  own  sake,  always  be  regarded  as  neutral 
nations  in  case  of  war,  and  neither  share  in  its  operations  nor 
participate  in  its  results. 

Read:  Wheaton,  Int.  Law,  §§  33-59; 
Woolsey,  Int.  Law,  §  37; 
Pomeroy,  Int.  Law,  §§  59-66; 
Glenn,  Int.  Law,  §§  12-18; 
Davis,  Int.  Law,  pp.  37-39; 
Moore,  Int.  Law,  §§  5-18. 


§  433.     Of  the  Territorial  Limits  of  External  Sovereignty. 

The  external  sovcreignt//  of  every  independent  State  extends 
to  all  parts  of  the  globe  which  are  not  subject  to  the  internal  sov- 
ereignty of  some  particular  State.  With  reference  to  this  question 
the  surface  of  the  earth  may  be  considered  as  dirisihlr  into  three 
portions  according  to  their  several  political  conditions:  (I)  "^I'liat 
over  which  there  is  no  internal  sovereignty,  and  in  which  the 
external  sovereignty  of  all  independent  nations  is  coccjual  and 
complete;  (2)  That  over  which  there  is  complete  internal  sov- 
ereignty, and  consefpiently  no  external  sovereignty;  (3)  That 
over  which  internal  sovereignty  exists  but  is  not  complete,  and 
yields  in  certain  matters  to  the  external  sovereignty  of  other 
States.  The  first  portion  includes  the  high  seas,  and  whatever 
land  remains  unoccupied  by  organized  political  communities. 
The  second  portion  c<)ni])rises  all  the  territory  lying  within  tlie 
physical  boundaries  of  the  individual  States,  with  the  exception 
of  the  great  waterways  leading  through  them  to  other  States  and 
the  localities  within  them  occupied  by  a  foreign  sovereign  or  his 
armies  or  amba.ssadors ;  as  also  their  ])ublic  vessels  wherever  they 
may  be,  and  their  |)rivate  vessels  when  not  in  foreign  ])orts.  I'he 
third  portion  covits  .so  nuich  of  the  ocean  and  its  inlets  as  lies 
within  a  marine  league  or  cannon  shot  of  the  coast  line  of  anv 


490  ELEMENTARY  LAW  §  434 

State ;  the  great  natural  waterways  leading  from  ocean  to  ocean, 
or  from  one  State  to  the  ocean  through  the  territory  of  another 
State ;  and  the  localities  in  one  State  occupied  by  the  sovereigns 
of  other  States  when  traveling  abroad,  or  by  their  ambassadors, 
or  by  their  armies  when  in  transit  through  its  territory. 

Rem.  The  divided  sovereignty  in  this  third  portion  enables  a 
State  to  protect  itself  against  the  advance  of  enemies  by  sea  or 
the  violations  of  its  domestic  laws  within  a  league  from  its  own 
shores,  and  to  enforce  its  authority  against  its  subjects  in  all 
parts  of  its  dominions ;  while  at  the  same  time  it  leaves  open  to  all 
other  States  the  avenues  of  commerce,  and  clothes  them  with  au- 
thority over  their  diplomatic  representatives,  and  their  military 
and  naval  forces,  though  temporarily  within  the  confines  of  an- 
other State.  The  rights  and  duties  contained  within  the  com- 
plete external  sovereignty  of  independent  nations  in  the  first 
portion  of  the  earth  and  their  incomplete  external  sovereignty  in 
the  third  portion,  together  with  its  effect  upon  the  internal  sover- 
eignty which  it  qualifies,  as  well  as  all  other  interstate  relations, 
are  defined  and  governed  by  the  rules  of  international  law. 

Read:  1  Kent  Com.,  Lect.  ii,  pp.  26-36; 
Wheaton,  Int.  Law,  §§  99-113,  177-205; 
Wharton,  Int.  Law,  §§  11  a,  13,  15,  17,  17  o,  20,  22-32,  33  o-39,  287- 

308,408-410; 
Woolsey,  Int.  Law,  §§  53,  56-62,  171; 
Pomeroy,  Int.  Law,  §§  125-158,  166-174,  177-187; 
Glenn,  Int.  Law,  §§  41-47,  56-60,  71,  72; 
Davis,  Int.  Law,  pp.  44-65,  69-85; 
Moore,  Int.  Law,  §§  125-174,  197-208,  251-261,  308. 


§  434.     Of  International  Law. 

The  law  which  defines  and  enforces  international  rights  and 
duties  proceeds  from  no  political  superior,  but  derives  its  author- 
ity from  the  common  consent  of  all  the  States  within  the  family 
of  nations.  Its  obligations,  though  thus  voluntarily  assumed, 
cannot,  however,  be  repudiated  by  any  State,  without  forfeiting 
its  place  in  the  national  family  and  possibly  subjecting  itself  to 
punishment  or  even  dissolution  by  the  other  States.  This  law  is 
also  made  a  part  of  the  domestic  law  of  every  State,  and  operates 
directly  on  its  citizens.  Its  provisions  are  not  formally  set  forth 
in  any  code  or  body  of  laws,  but  exist  in  customs,  usages,  and 
generally  accepted  principles  of  conduct;  and  are  expressed  in 


§  435  INTERNATIONAL   LAW  491 

words  in  the  treatises  of  jurists,  the  decisions  of  courts,  in  State 
papers,  and  in  treaties.  Uniform  throughout  all  the  States 
whose  circumstances  are  identical,  it  varies  with  their  friendly 
or  hostile  attitude  toward  one  another,  and  hence  is  properly 
divided  into:  (1)  The  Laws  of  Peace;  and  (2)  The  Laws  of 
War. 

Rem.  International  latv  has  no  relation  to  political  commu- 
nities outside  the  family  of  nations  except  through  its  effect  upon 
the  States  within  the  family ;  and  neither  binds  them  nor  protects 
them,  but  leaves  them  to  be  dealt  with  by  each  State  according  to 
the  law  of  nature,  subject  to  such  restrictions  only  as  the  interests 
of  the  States  within  the  family  impose.  Nor  does  it  include  the 
special  conventions  and  agreements  made  between  two  or  more 
of  the  States  within  the  family  as  to  their  reciprocal  obligations, 
since  these  are  binding  on  no  other  State,  nor  on  the  actions  of 
the  family  at  large. 

Read:  1  Kent  Com.,  Lect.  i,  pp.  1-20; 
Wheaton,  Int.  Law,  §§  1-15; 
Wharton,  Int.  Law,  §§  8,  9; 
Woolsey,  Int.  Law,  §§  26-35,  222-231; 
Pomeroy,  Int.  Law,  §§  1-46; 
Glenn,  Int.  Law,  §§  5-7; 
Moore,  Int.  Law,  §§  1,  2. 


SECTION  I 

OF  THE   RECIPROCAL   RIGHTS    AND    DUTIES   OF   STATES   IN   TIMES 

OF    PEACE 

§  435.     Of  the  Creation  of   New  States,  and  their  Admission  into 
the  Family  of  Nations. 

New  States  may  arise  either:  (1)  By  the  organization  into  a 
political  community  of  a  population  hitherto  unattached  to  any 
State;  or  (2)  By  the  division  of  an  existing  State  into  two  or 
more  States ;  or  (3)  By  the  combination  of  two  or  more  existing 
States  into  a  new  State ;  or  (4)  By  the  successful  rebellion  of  the 
people  of  a  State  against  the  existing  governmental  system,  or 
any  other  form  of  revolution  which  results  in  the  substitution  of 
a  new  State  for  the  old.  Whenever,  in  any  of  these  methods,  a 
political  society  originates  which  is  in  fact  wholly  independent 
of  any  superior  State,  and  is  apparently  able  to   maintain  its 


492  ELEMENTARY   LAW  §  436 

independence,  it  is  a  proper  subject  for  admission  to  the  family 
of  nations.  Such  admission  is  not,  however,  a  matter  of  right, 
but  rests  in  the  discretion  and  depends  on  the  consent  of  the  mem- 
bers of  the  national  family ;  and  their  decision  must  be  governed 
by  considerations  relating  to  their  own  political,  moral,  and  com- 
mercial interests.  In  determining  upon  the  admission  of  any  par- 
ticular State  no  attention  is  paid  to  the  legality  or  illegality  of  its 
origin ;  if  it  is  de  facto  an  independent  State,  and  international 
policy  demands  its  recognition,  the  claims  of  sovereignties  from 
which  it  has  seceded  will  be  ignored.  The  recognition  of  a  netv 
State  may  be  made  by  mutual  treaties  between  it  and  the  other 
States,  or  by  the  interchange  of  ambassadors,  or  by  express 
declaration. 

Rem.  The  effect  of  the  formation  of  a  new  State  upon  the  rights 
and  duties  of  the  State,  from  which  it  was  derived,  vary  with  the 
mode  of  its  production.  Where  a  new  State  is  formed  from  an 
old  one,  by  a  process  in  which  the  old  State  disappears,  the  in- 
ternational rights  and  obHgations  of  the  old  State  continue  in 
the  new.  Where  a  new  State  is  severed  from  a  parent  State, 
which  still  preserves  its  identity,  the  international  rights  and 
duties  of  the  parent  State  survive  in  it  alone,  unless  they  are  pecu- 
liar to  that  portion  of  the  territory  of  the  parent  State  over  which 
the  new  State  has  acquired  exclusive  sovereignty.  When  an  old 
State  is  entirely  divided  into  several  new  ones,  each  becomes  a 
sharer  in  the  former  international  rights  and  obligations  in  a 
proportion  measured  by  its  territory,  population,  agreement  with 
the  remaining  subdivisions,  or  other  circumstantial  standards. 
Where  one  existing  State  is  absorbed  into  another  the  latter  State 
is  clothed  with  the  rights  and  assumes  the  duties  of  the  other, 
so  far  as  they  are  consistent  with  its  own  constitution.  Mere 
private  rights  are  not  affected  by  a  change  in  sovereignty. 

Read:  Wheaton,  Int.  Law,  §§  28-32; 
Wharton,  Int.  Law,  §§  6,  10,  70,  71; 
Woolsey,  Int.  Law,  §§  38-41; 
Pomeroy,  Int.  Law,  §§  67-77,  215-223  240-249; 
Glenn,  Int.  Law,  §§8-11,  25-29; 
Davis,  Int.  Law,  pp.  31-34,  41-43; 
Moore,  Int.  Law,  §§  19,  20,  22,  27-58,  76-79,  90-124. 


§  436.     Of  the  Right  of  a  State  to  Acquire  New  Territory. 

The  rules  of  international  law  permit  a  State  to  acquire  new 
territory:    (1)  By  discovery  and  beneficial  occupation;    (2)  By 


§  436  INTERNATIONAL  LAW  493 

purchase;  (3)  By  peaceful  and  voluntary  cession;  (4)  By  con- 
quest as  a  result  of  justifiable  war.  A  title  by  discovery  and  bene- 
ficial occupation  can  arise  only  in  reference  to  territory  not 
already  occupied,  or  occupied  by  vagrant  populations  not  yet 
organized  into  a  State.  A  beneficial  occupation  is  an  occupation 
for  a  useful  purpose,  —  as  for  a  trading  post,  a  fishing  station,  or 
an  agricultural  settlement.  It  must  have  been  authorized  or 
sanctioned  by  the  State  in  which  it  creates  title,  and  must  be 
continued  long  enough  to  manifest  the  intention  of  that  State  to 
make  the  occupied  locality  a  permanent  part  of  its  own  territory. 
The  area  covered  by  this  title  comprises  all  the  land  actually  occu- 
pied and  controlled  by  the  new  colony,  together  with  all  that  may 
be  naturally  incidental  to  it  or  necessary  to  its  security.  A  title  by 
purchase  or  by  voluntary  cession  is  based  upon  a  contract  between 
the  ceding  and  the  receiving  States,  either  for  valuable  considera- 
tion as  in  the  case  of  a  purchase,  or  in  the  readjustment  of  po- 
litical relations  as  in  the  case  of  voluntary  cession.  To  render  a 
title  by  purchase  valid  each  of  the  States  must,  by  its  constitution, 
have  possessed  the  right  to  engage  in  such  transactions.  A  vol- 
untary cession  made  to  jirocure  the  termination  of  a  war  is  within 
the  ordinary  powers  of  sovereign  States;  a  cession  in  times  of 
peace  is  held  by  some  authorities  to  require  the  consent  of  the 
inhabitants  of  the  ceded  tc>rritory.  A  title  by  conquest  is  legiti- 
mate when  the  territory  is  ac(juired  in  the  progress  of  a  righteous 
war,  and  is  necessary  for  the  protection  of  the  victor  State  or  as 
compensation  for  the  wrongs  it  has  sustained.  The  transfer  of 
territory  from  one  State  to  another,  by  any  of  these  methods,  is 
without  prejudice  to  the  personal  and  property  rights  of  its  in- 
habitants, and  former  laws  remain  in  force  until  su])j)lanted  by 
new  legislation. 

Rem.  The  once  asserted  doctrine  that  mere  discovery  of  new 
territory  forms  a  ground  of  ownership,  irrespective  of  continued 
occupation  and  enjoyment,  was  long  since  explovled.  A  title 
claimed  by  virtue  of  a  conquest,  resulting  from  a  war  waged 
simply  for  the  purpose  of  territorial  aggrandizement,  also  no 
longer  receives  recognition  under  the  rules  of  international  law. 
Modern  ideas  conform  to  the  universal  principles  that  occupa- 
tion for  use  is  the  true  foundation  of  every  title,  and  that  self- 
defence  and  fair  reprisal  are  consonant  with  justice;  while 
robbery  in  every  form,  whether  by  States  or  individuals,  is 
alwavs  wronrr. 


494  ELEMENTARY   LAW  §  437 

Read:  1  Kent  Com.,  Lect.  viii,  pp.  177-179; 
3  Kent  Com.,  Lect.  li,  pp.  377-399; 
Wheaton,  Int.  Law,  §§  165,  166; 
Wharton,  Int.  Law,  §§  2,  4-5  a,  11; 
Woolsey,  Int.  Law,  §§  21,  54,  55; 
Pomeroy,  Int.  Law,  §§  91-124,  165; 
Glenn,  Int.  Law,  §§31,  34-40; 
Davis,  Int.  Law,  pp.  66,  67,  345-349; 
Moore,  Int.  Law,  §§  25,  80-89; 
Story  on  the  Constitution,  §§  1-38. 


§  437.     Of  Political  and  Commercial  Intercourse  between  Sover- 
eign States :  Intercourse  through  Sovereigns  in  Person. 

An  independent  State  undoubtedly  has  the  right,  in  theory  at 
least,  to  hold  itself  aloof  from  other  States,  and  refuse  to  enter  into 
political  or  commercial  intercourse  with  them.  On  its  practical 
side,  however,  this  right  is  subject  to  certain  qualifications.  By 
the  law  of  nature  the  earth  as  a  whole  belongs  to  the  human  race 
as  a  whole;  and  any  natural  object  which  is  indispensable  to 
mankind,  although  contained  entirely  within  the  territory  of  a 
single  State,  is  not  so  far  under  its  sole  dominion  but  that,  if  the 
quantity  is  greater  than  it  needs,  other  nations  can  reasonably  and 
justly  claim  a  share  in  its  advantages.  Hence  it  has  been  held 
that  every  State,  which  has  such  articles  at  its  command,  is  bound 
to  permit  other  States  to  traffic  in  them  by  the  usual  methods  of 
commercial  intercourse,  and  that  to  refuse  this  privilege  is  a  hos- 
tile act.  Again,  no  State  can  lawfully  prohibit  the  use  of  inter- 
secting water-ways  leading  to  other  States,  or  that  incidental 
communication  with  its  own  people  which  such  use  necessitates. 
Nor  can  one  State,  which  has  already  established  commercial  or 
political  relations  with  other  States,  withdraw  therefrom  with- 
out their  consent ;  nor  exclude  their  governmental  agents  or  their 
duly  certified  subjects  without  submitting  its  reasons  for  such 
exclusion  to  their  consideration.  A  State  which,  in  view  of  these 
conditions,  is  free  to  refuse  intercourse  wdth  other  States,  and 
does  so,  thereby  cuts  itself  off  from  the  family  of  nations,  and  is 
neither  protected  nor  controlled  by  the  provisions  of  international 
law. 

Rem.  Political  intercourse  between  sovereign  States  is  for- 
mally carried  on  through  diplomatic  agents,  but  may  take  place 
through  the  persons  of  the  sovereigns  themselves.     When  the 


§  438  INTERNATIONAL  LAW  495 

sovereign  is  present  in  his  official  capacity  in  another  State  he  is 
regarded  as  still  within  his  own  dominions,  and  as  enjoying  all 
his  royal  prerogatives.  His  person  is  inviolable,  and  neither  he  nor 
his  retinue  are  bound  by  the  local  laws.  He  cannot  interfere  with 
local  affairs,  nor  assert  his  own  sovereignty  except  according  to 
the  laws  of  his  own  State  and  against  the  members  of  his  own 
train.  He  is  entitled  to  the  courtesies  prescribed  by  the  rules  of 
international  etiquette,  although  he  may  at  any  time  be  requested 
to  depart  by  the  sovereign  of  the  entertaining  State.  The  immun- 
ities attached  to  him  extend  to  the  house  in  which  he  resides,  and 
to  the  vessels  or  other  vehicles  on  which  he  may  be  transported. 
A  sovereign  traveling  in  foreign  countries  incognito,  or  as  a  pri- 
vate person,  submits  himself  to  the  local  jurisdiction,  but  may  at 
will  disclose  his  official  character  and  claim  its  legal  privileges. 

Read:  Wheaton,  Int.  Law,  §§  95-97; 
Woolsey,  Int.  Law,  §§  25,  63-70; 
Pomeroy,  Int.  Law,  §§  159-164,  175; 
Glenn,  Int.  Law,  §  48; 
Davis,  Int.  Law,  pp.  85-87,  122-124; 
Moore,  Int.  Law,  §  250. 


§  438.     Of    Political    Intercourse     between     Sovereign    States 
through  Ambassadors  and  Ministers. 

Diplomatic  agents  are  of  great  variety,  but  may  be  divided  into 
these  general  classes:  (1)  Those  through  whom  political  inter- 
course is  carried  on  between  two  sovereign  States;  (2)  Those 
through  whom  such  intercourse  is  carried  on  between  political 
communities,  one  of  which  is  not  a  sovereign  State;  (3)  Those 
through  whom  intercourse,  both  commercial  and  political,  is 
carried  on  in  foreign  countries,  between  the  citizens  of  the  State 
they  represent  and  their  own  State,  or  the  foreign  State  or  its  resi- 
dent citizens.  Diplomatic  agents  of  the  first  class  are  known  as 
ambassadors  or  ministers.  An  ambassador  is  accredited  directly 
from  one  sovereign  to  the  other,  and  on  presenting  his  creden- 
tials must  be  received  as  the  representative  of  his  own  sovereign 
unless  the  sovereignty  he  represents  is  doubtful,  as  in  the  case  of 
civil  war;  or  unless  his  mission  is  incon.sistent  with  the  dignity  or 
interests  of  the  State  to  which  he  is  sent ;  or  unless  he  is  himself  a 
person  against  whose  presence  within  its  borders,  in  his  proposed 
capacity,  that  State  has  some  reasonable  objection.  While  within 
the  State  to  which  he  is  accredited  he  and  his  household  are  ex- 


496  ELEMENTARY   LAW  §  439 

emjit  from  its  civil  and  criminal  jurisdiction ;  are  entitled  to  pro- 
tection against  personal  interference ;  and  are  to  be  treated  with 
the  deference  which  international  etiquette  requires.  His  official 
residence,  and  the  personal  property  incidental  thereto,  are  free 
from  local  taxes  and  from  police  supervision,  though  he  has  no 
right  to  employ  them  for  the  refuge  of  criminals  other  than  those 
of  his  own  family.  For  grievous  offences  against  the  local  law,  or 
against  good  morals,  he  may  be  remanded  to  his  own  sovereign 
for  trial,  and  may  himself  send  home  for  that  purpose  any  of  his 
household  who  violate  the  law.  The  official  authority  of  an  am- 
bassador is  terminated  by  his  recall  by  his  own  State ;  or  by  his  dis- 
missal by  the  State  to  which  he  is  accredited ;  or  by  war  between 
the  States;  or  by  the  death  of  his  own  sovereign;  or  by  the 
dissolution  of  his  State ;  or  by  the  fulfilment  of  his  mission ;  or  by 
the  expiration  of  the  time  for  which  he  was  appointed.  In  his 
transit  through  other  States,  with  which  his  own  State  is  at  peace, 
his  personal  and  property  rights  must  be  respected,  even  when 
such  States  are  hostile  to  the  State  to  which  he  has  been  sent ;  but 
he  has  no  right  of  passage  through  States  with  which  his  own 
State  is  at  war. 

Rem.  The  privileges  and  duties  of  ambassadors  are  shared 
by  other  public  ministers  who  are  accredited  directly  by  one 
sovereign  to  another,  as  the  formal  medium  of  their  political 
intercourse.  Public  ministers  who  are  charged  with  an  inferior 
or  special  mission  enjoy  such  immunities  as  their  credentials 
demand. 

Read:  1  Bl.  Com.,  pp.  253-256; 
1  Kent  Com.,  Lect.  ii,  pp.  38-41; 
Wheaton,  Int.  Law,  §§  98,  20G-251; 
Wharton,  Int.  Law,  §§  78-110; 
Woolsey,  Int.  Law,  §§  86-98; 
Pomeroy,  Int.  Law,  §§  176,  316-369; 
Glenn,  Int.  Law,  §§  49-55,  78-84; 
Davis,  Int.  Law,  pp.  87,  88,  190-210; 
Moore,  Int.  Law,  §§  623-695. 

§  439.  Of  Political  and  Commercial  Intercourse  between  Sov- 
ereign States  through  Commissioners,  Consuls,  and  Resi- 
dent AUens. 

Occasions  sometimes  arise  when  political  intercourse  be- 
comes necessary  between  communities  one  of  which  is  not  a 


I 


§  439  INTERNATIONAL   LAW  497 

sovereign  State,  as  between  a  colony  and  the  mother  country, 
or  between  a  revolutionary  government  and  a  foreign  State.  The 
agents  employed  for  this  purpose,  on  the  part  of  the  dependent  or 
as  yet  unrecognized  community,  are  known  by  various  names, 
and  are  sometimes  called  commissioners.  The  State  to  which  a 
commissioner  is  accredited  is  under  no  obligation  to  receive  him, 
and  even  when  he  is  received  he  is  not  entitled  to  the  immuni- 
ties which  attach  to  the  representatives  of  sovereign  powers.  If 
he  is  sent  by  a  rebellious  colony  to  the  parent  State,  without  a 
pledge  of  safeguard  from  the  government,  he  is  liable  to  arrest 
and  punishment  as  a  traitor.  But  it  is  optional  with  any  State  to 
treat  such  a  messenger  with  courtesy,  to  allow  him  a  respectful 
hearing,  and  to  grant  him  such  local  exemptions  as  are  compati- 
ble with  his  official  errand.  Consuls  are  governmental  agents 
who  reside  abroad  to  protect  citizens  of  their  own  States  in  foreign 
countries.  The  interests  committed  to  them  are  manifold,  some 
relating  to  commerce,  others  to  the  political  welfare  of  their  own 
States.  Among  their  duties,  which  are  prescribed  by  treaties  or 
by  the  laws  of  their  own  States,  are  the  issuing  of  certificates, 
marine  protests,  passports,  and  other  official  documents ;  the  care 
of  distressed  seamen  and  of  the  estates  of  deceased  citizens  of 
their  own  State ;  the  decision  of  controversies  between  their  own 
citizens;  and  the  reporting  to  their  own  State  of  any  information 
they  possess  which  may  promote  its  welfare.  Consuls  may  be 
citizens  either  of  the  State  they  represent,  or  of  the  State  where 
they  reside.  They  are  appointed  by  commission  or  patent,  and 
on  presenting  their  credentials  to  the  foreign  government  they 
receive  an  exequatur,  authorizing  them  to  perform  consular  func- 
tions in  the  locality  to  which  they  have  been  s(>t.  This  exequatur 
may  be  recalled  and  the  consul  dismissed  for  illegal  conduct ;  and 
for  an  offence  against  the  local  law  he  can  either  be  punished 
abroad  or  be  exjiellcd  from  the  country.  He  enjoys  no  diplomatic 
immunities  like  those  of  an  ambassador,  but  is  usually  exempt 
from  arrest  on  political  grounds,  from  personal  taxes,  and  from 
military  and  jury  duty;  and  in  the  event  of  war  between  the 
State  of  his  residence  and  other  foreign  States  he  is  entitled  to 
j)rotection  from  the  combatants,  both  as  to  his  person  and  his 
abode. 

32 


498  ELEMENTARY  LAW  §  440 

Rem.  A  resident  alien,  though  in  no  proper  sense  a  political 
representative  of  his  own  State,  can  by  many  of  his  actions  and 
voluntary  conditions  bring  it  under  certain  obligations.  A  State 
which  permits  the  citizens  of  other  States  to  enter  its  territory  is 
bound  to  protect  their  persons  and  property,  and  to  enact  and 
enforce  laws  sufficient  for  that  purpose ;  and  if  it  fails  to  do  this 
it  becomes  liable  for  any  violation  of  their  rights  either  by  its 
governmental  agents  or  by  its  own  citizens.  It  is  not,  however, 
responsible  for  the  consequences  of  a  sudden  outbreak  by  a  mob, 
or  an  insurrection  which  it  could  not  be  expected  to  foresee  or 
prevent.  Resident  aliens  are  subject  to  the  local  laws,  except 
when  they  impose  duties  inconsistent  with  their  local  allegiance 
to  their  own  States,  or  when  conformity  to  them  requires  political 
qualifications  which  aliens  do  not  possess.  They  are  exempt  from 
military  duty  unless  in  an  emergency  created  by  an  attack  of 
savages  or  pirates,  or  when  called  upon  to  aid  in  the  enforcement 
of  necessary  police  regulations.  Every  State  also  owes  to  the 
shipwrecked  mariners  of  any  nation,  and  to  other  persons  cast 
helpless  and  destitute  upon  its  shores,  the  duties  dictated  by 
ordinary  humanity. 

Read:  1  Kent  Com.,  Lect.  ii,  pp.  41-45; 

Wheaton,  Int.  Law,  §§  110,  216; 
Wharton,  Int.  Law,  §§  113-125; 
Woolsey,  Int.  Law,  §§  99-100; 
Pomeroy,  Int.  Law,  §§  370-385; 
Glenn,  Int.  Law,  §§  85-90; 
Davis,  Int.  Law,  pp.  88,  211-218; 
Moore.  Int.  Law,  §§  627,  628,  696-733. 


§  440.     Of  Intercourse  between  Sovereign  States  :  Treaties  :  In- 
ternational Etiquette. 

A  treaty  is  a  compact  between  two  or  more  sovereign  States, 
It  is  generally  framed  and  signed  by  commissioners  appointed  by 
the  States,  and  then  submitted  to  the  respective  States  for  ratifi- 
cation. If  ratified  it  becomes  operative  from  the  date  of  signature. 
The  subject-matter  of  a  treaty  may  be  any  action,  forbearance,  or 
relation  which  the  signatory  States  have  the  constitutional  and 
international  right  to  undertake.  It  may  be  in  aid  of  commer- 
cial or  political  interests ;  or  to  secure  the  treaty  States  against  the 
aggressions  of  other  States ;  or  to  preserve  neutrality  in  case  of 
war ;  or  to  form  an  alliance  against  all  other  States ;  or  to  guar- 
antee to  one  of  the  States  certain  rights  against  a  third.  A  treaty 
is  invalid  when  procured  by  force  or  fraud ;  and  may  be  rescinded 


§  441  INTERNATIONAL  LAW  499 

by  mutual  agreement,  or  expire  by  lapse  of  time,  or  by  the  com- 
pletion of  its  purpose,  or  by  the  occurrence  of  conditions  which 
render  its  further  execution  impossible.  War  between  the  parties 
may  suspend  but  does  not  necessarily  abrogate  a  treaty,  and  un- 
less it  is  in  some  other  manner  terminated  it  may  revive  at  the 
return  of  peace.  A  valid  treaty  is  binding  upon  the  respective 
States  as  long  as  it  exists,  and  any  breach  of  it  is  a  sufficient 
ground  for  retorsion,  reprisal,  or  in  the  last  resort  for  war.  It 
is  also  binding  upon  all  the  citizens  of  the  signatory  States,  and  as 
to  them  is  interpreted  and  enforced  in  the  same  manner  as  their 
other  local  laws.  In  the  United  States  a  treaty  is  of  the  same  au- 
thority as  an  Act  of  Congress,  and  when  a  conflict  arises  be- 
tween  them   the  latest   must  prevail. 

Rem.  Intercourse  between  sovereign  States  is  necessarily 
conducted  with  some  degree  of  formality;  and  for  a  guide  in  its 
observance  certain  ceremonial  rules  have  been  adopted  by  the 
family  of  nations  which  every  State,  and  all  its  people,  are  obliged 
by  courtesy  and  fraternal  duty  to  obey.  These  rules  constitute  the 
social  order  known  as  ^'international  etiquette."  They  govern 
the  modes  of  recognition  accorded  to  foreign  sovereigns  and  their 
diplomatic  agents;  their  rights  of  precedence;  their  methods  of 
transacting  public  business ;  the  honors  paid  to  their  military  and 
naval  representatives;  the  friendly  greeting  of  their  shi])s  at  sea; 
their  interchanges  of  congratulations  and  condolences ;  and  many 
other  lines  of  conduct  whose  polite  and  kindly  aspect  goes  so  far 
to  promote  international  harmony  and  peace.  Trivial  as  some 
of  these  observances  may  seem,  a  breach  of  them  is  a  serious  of- 
fence against  the  law  of  nations,  and  has  sometimes  been  treated 
as  a  sufficient  cause  for  war. 

Read:  1  Kent  Com.,  Lect.  ii,  pp.  25,  26;  Lect.  iii,  pp.  49-51;  Lect.  ix, 
pp.  181-183; 
Wheaton,  Int.  Law,  §§  160,  252,  253,  256-289; 
Wharton,  Int.  Law,  §§  130-139; 
Woolsey,  Int.  Law,  §§  81-85,  101-113; 
Pomeroy,  Int.  Law,  §§  250-315; 
Glenn,  Int.  Law,  §§  100-112; 
Davis,  Int.  Law,  pp.  124-133,  223-248; 
Moore,  Int.  Law,  §§  734-780. 


§  441.     Of  the  Right  of  Intervention. 

Notwithstanding  the  admitted  independence  of  every  State 
witliin  the  family  of  nations,  international  law  recognizes  the 


500  ELEMENTARY   LAW  §  442 

right  of  one  State  to  interfere  in  the  affairs  of  another  when  neces- 
sary for  its  own  protection,  even  although  it  has  as  yet  received 
no  such  provocation  as  could  be  regarded  as  a  cause  of  war. 
Thus  where  a  group  of  contiguous  States  are  so  nearly  equal  to 
one  another  in  military  resources  that  the  unusual  development 
of  one  might  endanger  the  safety  of  the  rest,  they  may  intervene  by 
protest  and,  if  necessary,  by  force  to  prevent  the  balance  of  power 
from  being  disturbed.  Or  where  one  of  two  friendly  nations  fails 
to  suppress  hostile  demonstrations  on  its  own  territory  against  the 
other,  by  persons  under  its  own  jurisdiction,  the  latter  nation  may 
by  its  own  act  compel  them  to  desist.  One  State  can  also,  if  re- 
quested, aid  another  State  in  quelling  insurrections,  but  cannot 
give  assistance  to  persons  who  are  in  revolt  against  the  estab- 
lished government  of  a  friendly  State,  unless  prepared  to  recog- 
nize the  insurgents  as  an  independent  political  community.  Any 
State  may  offer  its  friendly  service  as  mediator  to  two  or  more 
other  States,  between  whom  controversies  have  arisen. 

Bern.  Whether  one  State  can  interfere  with  another  in  its 
dealings  with  its  own  subjects,  on  the  ground  of  inhumanity  or 
religious  persecution,  is  doubtful.  In  instances  in  which  this  has 
in  fact  occurred  some  other  reason,  such  as  self-preservation  or 
the  protection  of  its  own  citizens,  has  usually  been  offered  by  the 
intervening  State  ;  or  it  has  acted  with  the  consent  of  all  the 
other  States,  and  in  a  manner  as  their  agent,  to  prevent  wrongs 
too  flagrant  for  the  universal  sense  of  natural  justice  to  endure. 

Read:  1  Kent  Com.,  Lect.  ii,  pp.  23-25; 
Wheaton,  Int.  Law,  §§  63-76; 
Wharton,  Int.  Law,  §§  45-68  a; 
Woolsey,  Int.  Law,  §§  42-51; 
Pomeroy,  Int.  Law,  §§  202,  203; 
Glenn,  Int.  Law,  §  91 ; 
Davis,  Int.  Law,  pp.  98-115; 
Moore,  Int.  Law,  §§  897-1063. 


§  442.     Of  Belligerent  Rights. 

Belligerent  rights  are  certain  privileges  which  are  conceded  to 
insurgents  either  by  their  own  States  or  by  foreign  States.  A 
rebel,  considered  merely  as  such,  is  at  once  a  citizen  of  and  a 
traitor  against  his  own  State.  As  a  traitor  he  is  liable  to 
arrest   and   punishment  for  his  crime.    As  a  citizen    his  own 


§  442  INTERNATIONAL  LAW  501 

State  is  liable  for  the  wrongs  committed  by  him  against  other 
States  and  their  citizens  notwithstanding  its  inabihty,  on  ac- 
count of  his  rebelHon,  to  prevent  them.  By  conceding  to  him 
belligerent  rights  his  own  State  at  once*  relieves  itself  from  re- 
sponsibility to  other  States  for  his  injurious  acts,  and  for  such  of 
its  own  agreements  as  his  rebeUion  renders  it  unable  to  fulfil ;  and 
confers  upon  him  a  ^wa^z-political  character  by  virtue  of  which  he 
becomes  subject  to  and  is  protected  by  the  laws  of  war  I'hough 
not  emancipated  from  his  allegiance  to  his  own  State,  he  then 
becomes  qualified  to  treat  with  it  as  a  hostile  power  for  the  ex- 
change of  prisoners  or  for  terms  of  peace,  and  may  negotiate 
with  foreign  States  for  the  borrowing  of  money  or  the  purchase 
of  supplies.  He  is  also  warranted  in  pursuing  ordinary  warlike 
measures,  such  as  commissioning  war  vessels  under  his  own 
flag,  blockading  ports,  or  exercising  the  customary  authority  over 
neutral  commerce.  The  concession  of  belligerent  rights  by  a  for- 
eign State  affects  the  conceding  State,  the  insurgents,  and  their 
parent  State;  compelling  the  parent  State  to  recognize  the  con- 
ceding State  as  a  neutral  between  the  two  hostile  powers,  with 
the  same  rights  and  liabilities  which  a  concession  by  the  parent 
State  would  create  as  to  the  whole  family  of  nations.  To  justify 
a  foreign  State  in  making  this  concession  an  actual  civil  war  must 
be  in  progress,  directed  against  the  existing  government  by  an 
organized  poHtical  community  which  observes  international 
usages  and  has  a  reasonable  prospect  of  ultimate  success;  and 
the  conceding  State  must  because  of  its  proximity  to  the  parent 
State,  or  the  danger  to  its  commerce  from  the  lawless  acts  of  the 
contending  factions,  be  liable  to  injury  unless  its  status  and  that 
of  the  parties  to  the  conflict  are  settled  by  those  rules  of  inter- 
national law  which  protect  neutral  States  in  time  of  war. 

Rem.  Belligerent  rights,  once  conceded,  cannot  be  withdraum 
whatever  inconvenience  their  enjoyment  by  the  insurgents  may 
occasion  to  the  conceding  States ;  but  upon  the  suppression  of 
the  revolt  they  are  extinguished,  and' do  not  revive  in  favor  of 
another  insurrection  subseciuently  commenced.  A  concession 
of  bi'lligerent  rights  btj  foreign  States  affords  no  evidence  of  their 
intention  to  recognize  the  independence  of  the  insurgent  com- 
munity. Before  this  can  lawfully  be  done  the  attempt  of  the 
parent  State  to  quell  the  rebellion  must  have  ceased,  and  the 
actual  independence  of  the  insurgents  must  have  been  achieved 


502  ELEMENTARY   LAW  §  443 

Read:  Wheaton,  Int.  Law,  §§  22-27; 
Wharton,  Int.  Law,  §§  7,  69,  350,  351; 
Woolsey,  Int.  Law,  §§  143,  179-181; 
Pomeroy,  Int.  Law,  §§  224-239; 
Glenn,  Int.  Law,  §§  20-23; 
Davis,  Int.  Law,  pp.  276-278; 
Moore,  Int.  Law,  §§  59-75. 


§  443.     Of  the  Duties  of  Sovereign  States  toward  Themselves 
and  One  Another. 

Every  State  oives  to  itself  the  duty  of  protecting  its  own  exist- 
ence, its  independence  and  its  sovereignty,  its  reputation,  its  ter- 
ritory, its  people,  and  its  property ;  and  when  these  are  attacked 
it  should  defend  them  with  all  necessary  force;  and  when 
they  are  injured  it  should  demand  and,  if  possible,  compel  re- 
dress. This-duty  in  all  its  fulness  is  imposed  by  the  law  of  nature, 
and  is  sanctioned  and,  in  the  general  modes  of  its  performance, 
regulated  by  international  law.  Every  State  is  expected  to  be  alert 
and  unrelenting  in  the  discharge  of  this  duty,  as  the  only  method 
of  preserving  its  own  rights  and  those  of  its  subjects  against  for- 
eign aggression.  Every  State  also  owes  to  all  other  friendly  States 
the  duty  to  observe  the  rules  of  international  law  and  the  estab- 
lished usages  and  privileges  of  interstate  relations;  to  prevent 
and  punish  injuries  by  its  own  subjects  to  their  reputation 
and  national  honor;  to  repress  conspiracies  within  its  territory 
against  their  governments ;  to  keep  good  faith  in  its  political  inter- 
course with  them ;  to  respect  the  decisions  of  their  courts ;  to  give 
effect  in  proper  cases  to  their  local  laws ;  and  to  refuse  shelter  to 
fugitive  offenders  from  their  shores  who  have  been  guilty  of  gross 
moral  wrongs.  Some  of  these  duties  have  been  formulated  in 
treaties ;  but  all  are  founded  on  essential  social  conditions  and 
derive  their  origin  from  the  natural  law. 

Rem.  Incidental  to  these  primary  international  duties  is  the 
imperative  obligation  of  each  nation  to  keep  itself  in  a  perpetual 
condition  to  perform  them.  It  is  not  optional  with  any  sover- 
eign State  whether  it  will  be  weak  or  strong.  It  is  its  duty  to  be 
strong  enough  to  discharge  all  its  proper  functions  with  ade- 
quate promptness  and  effect,  and  for  that  purpose  to  maintain 
its  armies  and  navies  and  all  the  appliances  of  war  on  such  a 
footing,  even  in  times  of  peace,  that  it  may  be  ready  for  any 
jemergency  which  can  arise. 


§  444  INTERNATIONAL  LAW  503 

Read:  1  Kent  Com.,  Lect.  iii,  pp.  36-38,  47-49; 
Wheaton,  Int.  Law,  §§  60-62,  115-120; 
Wharton,  Int.  Law,  §§  16,  268-282; 
Woolsey,  Int.  Law,  §§  18-20  b,  22-24,  75-80; 
Pomeroy,  Int.  Law,  §§  76-90,  198-201,  204; 
Glenn,  Int.  Law,  §§  30,  33,  62-70; 
Davis,  Int.  Law,  pp.  91-96,  116-122,  166-180; 
Moore,  Int.  Law,  §§  23,  209-241,  579-622. 


§  444.     Of  the  Causes  of  War  and  its  Prevention. 

The  failure  of  one  State  to  perform  its  legal  duty  toward  an- 
other in  any  matter  of  political  importance  is  a  sufficient  cause  for 
war.  Of  this  sufficiency  the  injured  State  must  judge  for  itself, 
and  if  it  appeals  to  arms  the  offending  State  has  no  alternative 
except  to  meet  the  issue  which  it  has  provoked.  A  tear  is  justified 
not  only  by  past  offences,  but  by  the  immediate  danger  of  an  in- 
jury which  force  at  once  exerted  may  be  able  to  prevent ;  or  by 
political  combinations  between  other  States  which  give  them  an 
unreasonable  advantage  in  the  event  of  future  conflict ;  or  by  an 
unwarrantable  attack  upon  some  other  State  in  defiance  of  the 
general  policy  of  the  family  of  nations.  In  modern  times  the  ten- 
dency to  forestall  threatened  wrongs  by  preventive  remedies  has 
taken  possession  of  all  methods  of  redress ;  and  nations  claim  and 
exercise  the  right  to  ward  off,  by  a  timely  interference,  the  in- 
juries which,  if  actually  committed,  might  lead  to  long  continued 
and  disastrous  war. 

Rem.  The  fraternal  spirit,  prevailing  throughout  the  family 
of  nations,  also  encourages  an  offended  nation  to  resort  to  milder 
methods  of  redress  than  that  of  actual  war;  and  international 
law  gives  to  these  methods  a  definite  form  and  sanction,  in  order 
to  afford  a  just  relief  with  the  lea.st  possible  injury  to  the  offender. 
Most  prominent  among  these  measures  is  that  of  arbitration, 
where  the  contending  States  submit  their  controversy  to  the  de- 
cision of  a  tribunal  constituted  by  a  treaty,  and  promise  to  abide 
by  its  decision.  A  second  method  is  retorsion,  whereby  the  injured 
State  retaliates  against  the  offender  by  inflicting  upon  it,  or  upon 
its  subjects,  the  same  wrong  in  species  and  in  quantity  which  it 
has  itself  sustained.  A  third  measure  is  reprisal,  which  consists 
in  seizing  the  property  of  the  offending  State,  eitlier  in  satisfac- 
tion for  the  offence  or  as  security  for  a  compensation  now  de- 
manded and  expected  to  be  hereafter  made.  Another  remedy  is 
embargo,  or  the  detention  in  the  harbors  of  the  injured  State  of 


504  ELEMENTARY   LAW  §  445 

private  vessels,  sailing  under  the  flag  of  the  offender,  until  the 
wrong  complained  of  is  redressed  or  the  controversy  culminates 
in  war.  A  fifth  method  is  a  pacific  blockade  of  the  ports  of  the 
offender,  interrupting  its  commerce,  and  seizing  and  sequestering 
such  of  its  vessels  as  attempt  to  enter  or  leave  their  harbors,  until 
the  offending  State  is  brought  to  terms  of  settlement,  or  the  con- 
test of  endurance  is  superseded  by  open  hostilities.  In  such 
blockades  the  right  of  neutral  States  must  be  respected,  and  the 
commerce  of  their  subjects  be  allowed  to  pass  and  repass  without 
molestation.  These  milder  measures  being  ignored  by  the  of- 
fended State,  or  having  been  applied  by  it  without  result,  nothing 
remains  to  it  except  to  waive  its  rights  or  submit  them  to  the 
arbitrament  of  war. 

Read:  1  Kent  Com.,  Lect.  ill,  pp.  60,  61; 
Wheaton,  Int.  Law,  §§  290-293; 
Wharton,  Int.  Law,  §§  315-321,  364; 
Woolsey,  Int.  Law,  §§  118,  119; 
Glenn,  Int.  Law,  §§  113-120; 
Davis,  Int.  Law,  pp.  250-267; 
Moore,  Int.  Law,  §§  1064-1099. 


SECTION    II 

OF    THE    RECIPROCAL    RIGHTS    AND    DUTIES    OF    STATES    IN 
TIMES    OF    WAR 

§  445.     Of  War. 

War  is  a  condition  of  active  armed  hostility  between  two  or 
more  independent  States,  or  between  a  parent  State  and  its  re- 
bellious subjects  to  whom  belligerent  rights  have  been  conceded. 
According  to  the  principles  now  recognized  by  the  family  of 
nations  a  war  must  have  an  adequate  cause;  and  it  is  customary 
at  the  commencement  of  a  war  for  the  attacking  State  to  disclose 
this  cause  to  other  States  and  its  own  citizens,  and  to  announce 
the  purpose  which  it  has  in  opening  hostilities.  It  is  not,  how- 
ever, bound  by  this  announcement,  but  as  the  war  progresses  it 
may  change  its  purpose  as  circumstances  change,  and  at  the 
termination  of  the  war  may  insist  upon  concessions  which  it  at 
first  disclaimed.  A  formal  declaration  of  tvar,  once  considered 
so  important,  is  no  longer  necessary.  The  defending  State  has 
ample  notice  through  its  diplomatic  agents  of  the  impending 
crisis,  and  frequently  an  jiltimatum  issued  by  the  attacking  State 
demands  redress  within  a  definite  time  under  the  penalty  of  im- 


§  446  INTERNATIONAL  LAW  505 

mediate  war.  Neutral  States  and  the  subjects  of  the  two  con- 
tending nations  have  a  right  to  a  sufficient  warning  from  the 
attacking  State  to  enable  them  to  take  proper  measures  for  their 
own  protection  before  hostilities,  which  could  affect  them,  are 
actually  begun.  The  breaking  out  of  tear  introduces  a  new  ele- 
ment into  the  external  sovereignty  of  every  State  within  the  na- 
tional family.  The  States  engaged  in  the  conflict  become  subject 
to  those  rules  of  international  law  which  govern  the  rights  and 
duties  of  belligerents.  Those  not  participating  in  the  struggle  are, 
in  their  relations  to  the  contending  States,  subject  to  the  rules 
which  govern  the  rights  and  duties  of  neutrals;  while  in  refer- 
ence to  one  another  they  remain  under  the  rules  which  control 
all  nations  in  times  of  peace. 

Rem,.  Conflicts  between  groups  of  people  not  forming  political 
communities,  or  between  a  State  and  such  a  group,  or  between  a 
State  and  a  body  of  insurgents  not  j)osesssiug  belligerent  rights, 
are  not  war  in  the  sense  of  interiuitional  law,  although  they  may 
follow  its  methods  and  are  governed  by  its  rules ;  and  with  such 
conflicts  States  not  immediately  involved  do  not  concern  them- 
selves unless  they  grossly  violate  the  dictates  of  humanity. 

Read:  1  Kent  Com.,  Lect.  iii,  pp.  51-55; 
Whcaton,  Int.  Law,  §§  2!)4-297; 
Wharton,  Int.  Law,  §§  '.i'S-i-liSB; 
Woolscy,  Int.  Law,  §§  114-117,  120-122; 
Glenn,  Int.  Law,  §§  121-129; 
Davis,  Int.  Law,  pp.  271-274,  279-281; 
Moore,  Int.  Law,  §§  1100-1108. 


Article  I 

OF   THE    RECIPROCWL    RIGHTS    .\M)    DI'TIES   OF    BELLIGERENTS 

§  446.     Of  the  Effects  of  War  upon  the  Mutual  Relations  of  the 
Hostile  States  and  of  their  Citizens. 

The  date  of  the  commencement  of  the  war,  when  not  pre- 
scribed in  some  public  announcement  of  the  attacking  State,  is 
fixed  by  the  occurrence  of  the  first  act  of  hostility;  and  thence- 
forward, until  the  formal  restoration  of  peace,  the  States  and  their 
respective  citizens  are,  in  law,  encmiat  to  one  another.  As  a 
result  of  this  condition  ordinary  poUtical  intercourse  between  the 


506  ELEMENTARY   LAW  §  446 

States,  and  commercial  intercourse  between  their  citizens,  are 
both  suspended.  Diplomatic  relations  give  place  to  the  negotia- 
tions peculiar  to  a  state  of  war ;  private  contracts,  unless  licensed 
by  the  respective  States,  have  no  validity ;  and  remedies  on  for- 
mer private  obligations  are  held  in  abeyance  until  the  return  of 
peace.  Strictly  speaking  this  condition  should  attach  even  to 
citizens  of  one  of  the  contending  States  who  are  residing  in  the 
other,  but  modern  custom  recognizes  their  right  to  remain  un- 
molested in  their  persons,  homes,  and  business  as  long  as  they 
preserve  entire  neutrality. 

Rem.  This  legal  enmity  implied  between  the  citizens  of  hostile 
States,  does  not,  however,  authorize  them  to  inflict  personal 
injury  upon  one  another  except  under  the  express  direction  of 
the  State.  On  the  contrary,  the  citizens  of  each  of  the  contend- 
ing States  are  presumed  to  be  divided  into  the  two  classes  of 
combatants  and  non-combatants.  The  combatants  are  the  mili- 
tary agents  of  the  State  who  carry  on  its  warlike  operations. 
The  non-combatants  are  its  peaceful  people  who  continue  to  at- 
tend to  their  usual  avocations,  and  only  indirectly  participate 
in  the  war.  Among  the  combatants  are  the  regular  army  and 
navy ;  the  militia  and  other  organized  bodies  of  armed  men  who 
are  under  the  direction  of  a  military  chief,  and  wear  an  author- 
ized uniform  or  badge  by  which  they  may  be  known ;  and  others 
who,  being  summoned  to  resist  an  invasion  of  the  enemy, 
engage  in  actual  hostihties.  Non-combatants  embrace  the  re- 
mainder of  the  people  except  bands  of  marauders  who,  without 
military  commissions  from  the  State,  perpetrate  acts  of  violence 
or  pillage ;  and  who  are  regarded  as  common  enemies,  having 
no  rights  as  combatants  under  the  laws  of  war,  and  not  protected 
as  non-combatants  against  the  vindictive  punishment  of  either 
hostile  State.  In  combatants  alone  resides  the  right  to  commit 
acts  of  hostility  against  the  enemy  except  in  self-defence,  and 
only  against  combatants  are  such  acts  permitted.  When  en- 
gaged in  conflict  and  willing  to  surrender  they  also  have  the 
right  to  quarter;  and  if  taken  prisoners  are  to  be  humanely 
treated,  and  in  due  time  exchanged  or  released  upon  parole. 
Non-combatants  are  by  law  secure  from  personal  interference, 
though  practically  liable  to  suffer  in  many  ways  when  military 
operations  are  conducted  in  their  immediate  vicinity. 

Read:  1  Bl.  Com.,  pp.  408-421; 

1  Kent  Com.,  Lect.  iii,  pp.  55,  66-69; 
Wheaton,  Int.  Law,  §§  298-336,  356,  357; 
Wharton,  Int.  Law,  §§  336-337  o; 


§  447  INTERNATIONAL  LAW  507 

Woolsey,  Int.  Law,  §§  124,  125,  135; 

Glenn,  Int.  Law,  §§  130-133; 

Davis,  Int.  Law,  pp.  275,  276,  282-286,  312,  313; 

Moore,  Int.  Law,  §§  1109,  1110,  1135-1142. 


§  447.     Of  the  Effects  of  War  upon  the  Property  Rights  of  Hostile 
States  and  their  Citizens. 

The  laws  of  war  permit  the  confiscation  or  destruction,  by  an 
invading  army,  of  any  movable  property  belonging  to  the  hostile 
State  which  is  capable  of  being  used  in  military  operations.  The 
jniblic  lands  and  buildings  of  the  enemy  may  also  be  occupied 
when  necessary  or  convenient,  but  not  wantonly  injured;  and 
property  appropriated  to  charitable  or  educational  enterprises, 
whether  movable  or  immovable,  is  generally  regarded  as  exempt 
from  interference.  Immovable  private  property  is  subject  to  the 
invader's  use,  but  not  to  injury  or  confiscation ;  while  movable 
private  property,  if  on  the  land,  is  as  a  whole  inviolate  though 
liable  to  the  levy  of  contributions  in  the  form  of  increased  taxes, 
and  to  requisitions  for  such  specific  articles  as  may  be  needed  by 
the  invader  for  immediate  consumption  or  temporary  enjoyment. 
The  substitution  of  these  strictly  regulated  burdens,  in  lieu  of  the 
unlimited  plunder  of  ancient  times,  does  not  extend  to  public  or 
private  property  at  sea.  Such  property  is  not  within  the  enemy's 
country,  nor  does  its  destruction  inflict  upon  its  owners  other 
than  a  pecuniary  loss.  Hence  it  is  still  regarded  as  fair  spoil  of 
war,  and  may  in  lawful  methods  be  captured  and  appropriated 
permanently  to  the  captors'  use.  The  property  of  alien  enemies, 
when  situated  in  the  State  with  which  their  own  State  is  at  war, 
enjoys  the  immunity  attaching  to  their  persons  and  their  busi- 
ness interests ;  and  until  they  are  notified  to  remove  it,  or  forfeit 
its  protection  by  their  own  misconduct,  it  is  treated  as  the  prop- 
erty of  an  alien  friend. 

Rem.  Public  debts  due  by  one  of  the  contending  States  to  the 
citizens  of  the  other  remain  always  undisturbed  as  a  matter  of 
international  policy,  since  the  safety  of  a  State  often  depends  on 
its  ability  to  borrow  money  in  the  markets  of  the  world;  and 
national  credit  would  be  worthless  were  its  obligations  cancelled 
by  the  occurrence  of  a  war  between  it  and  the  State  to  which  its 
creditors  belong. 


508  ELEMENTARY  LAW  §§  448,  449 

Read:  1  Kent  Com.,  Lect.  iii,  pp.  56-60,  62-66;  Lect.  iv,  pp.  74-79; 
Wheaton,  Int.  Law,  §§  346-356; 
Wharton,  Int.  Law,  §§14,  338-340; 
Woolsey,  Int.  Law,  §§  126,  136,  137; 
Glenn,  Int.  Law,  §§  146-156; 
Davis,  Int.  Law,  pp.  306-311; 
Moore,  Int.  Law,  §§  1183-1194. 


§  448.     Of  Military  Operations. 

I'he  modern  laws  of  war  demand  that  military  operations  shall 
be  conducted  with  the  least  amount  of  injury  to  the  hostile  State 
and  its  citizens,  which  is  consistent  with  the  accomplishment  of 
the  object  for  which  the  war  has  been  commenced.  Hence,  in 
actual  warfare,  many  practices  are  now  forbidden  which  once 
were  universally  accepted  as  legitimate,  such  as  secret  assassina- 
tion ;  the  use  of  poisonous  or  explosive  bullets,  or  other  weapons 
causing  inevitable  death ;  the  infliction  of  injuries  attended  with 
excessive  suflFering;  and  the  employment  of  flags  of  truce,  or 
hospital  flags,  or  the  enemy's  uniform,  in  order  to  deceive.  The 
bombardment  of  unfortified  towns,  or  of  fortified  towns  without 
giving  non-combatants  a  sufficient  opportunity  to  retire  to  a 
place  of  safety ;  the  continuance  of  slaughter  after  the  enemy  has 
surrendered ;  and  intentional  injury  to  those  crippled  by  wounds, 
or  to  hospital  corps  and  tents,  —  are  also  prohibited. 

Rem.  These  rules  place  no  restraint  upon  the  adoption  of 
measures  which  are  at  once  effective  and  humane,  as  modern 
warfare  abundantly  demonstrates,  but  tend  to  develop  modes  of 
conflict  by  which  great  national  issues  are  speedily  decided  with 
a  minimum  loss  of  life  and  of  permanent  corporal  disability. 

Read:  Wheaton,  Int.  Law,  §§  342,  343; 
Wharton,  Int.  Law,  §  349 ; 
Woolsey,  Int.  Law,  §§  130-133,  138,  142; 
Glenn,  Int.  Law,  §§  177-181,  183; 
Davis,  Int.  Law,  pp.  286-293,  295-305,  322-326; 
Moore,  Int.  Law,  §§  1111-1126. 

§  449.     Of  Prisoners  of  War. 

Combatants  who  are  captured  or  surrender  thereby  become 
prisoners  of  war,  and  may  be  kept  in  such  confinement  as  is 
necessary  to  prevent  their  escape.  They  are  not  subject  to  pun- 
ishment unless  guilty  of  actual  offences  against  the  laws  of  war. 


§  450  INTERNATIONAL  LAW  509 

It  is  customary  to  release  officers,  and  others  whose  word  seems 
to  be  reUable,  upon  their  parole  of  honor  not  to  serve  again  (hiring 
the  war,  unless  duly  ransomed  or  exchanged.  The  exchange  of 
prisoners  between  the  belligerents,  or  the  payment  of  a  stipulated 
ransmn,  are  other  methods  of  restoring  them  to  freedom.  Where  a 
prisoner  of  war  escapes  and  is  recaptured  no  additional  penalty 
can  be  imposed  upon  him,  but  one  who  violates  his  parole  of 
honor  may  be  punished  with  great  severity. 

Rem.  While  prisoners  of  war  remain  in  captivity  it  is  the 
duty  of  the  captor  to  feed  and  clothe  them  comfortably,  and  in 
return  he  may  exact  from  them  non-military  services  suited  to 
their  rank.  They  may  be  forced  to  conform  to  reasonable  regula- 
tions, and  if  they  rebel  or  conspire  among  themselves  against 
their  captors,  or  to  effect  a  violent  escape,  they  may  be  punished 
even  with  death.  A  captured  spy  wearing  the  uniform  of  his  own 
country  is  a  mere  prisoner  of  war,  but  if  taken  in  disguise  within 
the  lines  he  is  liable  to  execution. 

Read:  Wheaton,  Int.  Law,  §§  344,  345; 
Wharton,  Int.  Law,  §§  347,  348; 
Woolsey,  Int.  Law,  §§  134,  141; 
Glenn,  Int.  Law,  §§  137-145,  182; 
Davis,  Int.  Law,  pp.  313-321; 
Moore,  Int.  Law,  §§  1127-1134. 


§  450.     Of  Maritime  Warfare. 

Maritime  loarfare  is  conducted  upon  the  high  seas  or  in  the 
waters  of  the  belligerent  States,  by  their  public  vessels  of  war. 
Until  a  recent  period  private  vessels  were  frequently  com- 
missioned by  the  contending  States  to  prey  U})on  the  com- 
merce of  each  other,  but  modern  treaties  and  the  general  laws 
of  war  now  discountenance  all  forms  of  privateering.  In 
reference  to  ))ersons  the  immunities  secured  to  non-combatants 
and  the  ameliorations  of  actual  conflict  are  the  same  at  sea  as 
upon  land,  hut  property  at  sea  does  not  enjoy  equal  j)rotection. 
As  a  rule,  all  vessels  sailing  under  the  enemy's  flag,  or  carrying 
the  enemy's  license,  or  engaged  in  its  privileged  coasting  trade, 
are  regarded  as  enemy's  property  and  are  liable  to  capture. 
The  same  rule  a|)plies  to  the  cargoes  of  such  vessels,  and  to 
property  found   in   the   enemy's   ports,  unless   its   neutrality  i.j 


510  ELEMENTARY   LAW  §  450 

shown.  From  this  rule  fishing  vessels,  used  only  in  territorial 
waters,  are  generally  exempt.  The  flags  of  neutral  States  pro- 
tect their  vessels  unless  they  contain  articles  which  are  contra- 
hand  of  war.  Contraband  articles  include  military  supplies  of 
any  kind  which  are  in  transit  to  the  enemy's  country,  and 
other  chattels  destined  for  the  enemy  which  would  be  useful  in 
immediate  hostilities,  though  capable  of  other  uses.  Such 
articles  are  liable  to  capture  at  any  time  after  the  voyage  has 
begun,  and  before  they  reach  the  port  of  destination,  but  the 
neutral  vessel  in  which  they  are  transported  is  exempt  unless  it 
belongs  to  the  owners  of  the  contraband  cargo,  or  to  persons 
who  have  knowingly  engaged  in  the  contraband  trade.  When 
articles  of  a  doubtful  character  which  were  produced  in  the 
neutral  State,  and  are  being  forwarded  under  its  flag  to  the  ports 
of  the  enemy,  are  serviceable  in  the  military  operations  of  the 
captor,  they  may  be  retained  by  him  upon  payment  of  their 
value.  The  loss  by  capture  cannot  be  prevented  by  any  secret 
transfer  of  the  property  to  neutral  owners,  either  in  transit  or  in 
port. 

Rem.  Capture  implies  an  act  manifesting  an  intent  to  seize 
the  property  and  hold  it  as  prize  of  war,  and  is  complete  when  the 
persons  formerly  in  possession  of  the  property  have  surrendered 
it,  and  abandoned  the  efl^ort  to  recover  it.  If  the  captured  prop- 
erty is  a  vessel  it  is  customary  to  place  a  prize-master  and  crew  on 
board,  and  send  it  to  the  nearest  port  of  the  captor  State,  or  its 
ally,  for  an  adjudication  upon  the  lawfulness  of  the  capture  and 
the  title  of  the  claimants.  In  such  cases,  no  injury  must  be  in- 
flicted on  the  vessel  or  her  cargo,  nor  any  rights  exercised  over 
them  e.^cept  to  protect  them  from  maritime  dangers  and  recap- 
ture. Captured  property  belongs  in  the  first  instance  to  the  captor 
State ;  but  when  judicially  condemned  as  prize  is  usually  distrib- 
uted according  to  the  local  law  among  the  combatants  by  whom  it 
has  been  taken.  The  recapture  of  a  captured  vessel  before  it 
reaches  the  port  of  the  captor  State,  or  of  its  ally,  revests  the  title 
in  the  former  owners  subject  to  a  claim  for  salvage  on  behalf  of 
the  recaptors ;  but  its  arrival  at  that  port  and  its  condemnation 
as  a  prize  terminate  all  previous  ownerships,  and  subsequent 
captors  hold  it  as  their  own.  The  recapture  of  other  chattels 
has  the  same  efi^ect  if  made  within  twenty-four  hours  after  the 
first  capture ;  beyond  that  period  the  rights  of  the  former  owner 
do  not  survive.  The  ransom  of  a  captured  vessel  protects  it 
from  further  molestation  from  the  enemy  during  the  current 


4 


§  451  INTERNATIONAL  LAW  511 

voyage,  or  the  time  allowed  therefor  by  the  terms  of  the  ransom 
contract. 

Read:  1  Kent  Com.,  Lect.  iii,  p.  61;    Lect.  iv,  pp.  80-86;    Lect,  v, 
pp.  89-113;  Lect.  vii,  pp.  135-143; 
Wheaton,  Int.  Law,  §§  358-398,  476,  477,  505-507; 
Wharton,  Int.  Law,  §§  328-330,  345,  346,  368-375,  383-385; 
Woolsey,  Int.  Law,  §§  127-129,  139,  147-152,  193-201; 
Glenn,  Int.  Law,  §§  76,  134-136,  157-167,  241-253,  277; 
Davis,  Int.  Law,  pp.  294,  295,  305,  306,  357-375,  439-466; 
Moore,  Int.  Law,  §§  1166-1178,  1204-1265. 


§  461.     Of  the  Military  Government  of  Invaded  Territory. 

When  territory  of  the  enemy  has  been  invaded,  and  the  resist- 
ance of  the  inhabitants  has  ceased,  a  military  government  of 
which  the  commander  of  the  invading  army  is  the  head  super- 
sedes the  former  political  authority  and  continues  until  the  invad- 
ing army  is  withdrawn,  or  the  future  condition  of  the  territory  is 
determined  by  treaty  or  by  the  establishment  of  permanent  civil 
institutions.  The  power  of  the  military  governor  is  not  limited 
by  any  specific  rules.  He  may  ordain  whatever  is  necessary  for 
the  safety  of  his  army  or  the  success  of  his  immediate  enter- 
prise, and  may  prohibit  under  the  severest  penalties  any  acts 
which  give  a.ssistance  to  the  enemy.  So  far  as  may  be  prudent  he 
should  maintain  existing  civil  laws,  respect  the  rights  of  person 
and  property,  refrain  from  needless  injury,  and  make  the  situ- 
ation as  tolerable  as  possible  for  the  inhabitants. 

Rem.  The  extent  of  the  territory  under  the  military  govern- 
ment is  measured  by  the  area  over  which  the  invading  army  ex- 
ercises actual  control,  though  it  need  not  be  represented  by  an 
armed  military  force  at  every  place  within  that  territory.  During 
a  miUtary  occupation  both  the  territory  and  population  are  still 
comprised  within  the  State  to  which  they  originally  belonged,  and 
on  its  cessation  they  resume  their  former  political  relations,  un- 
less they  are  annexed  by  treaty  or  by  concjuest  to  the  invading 
State.  In  either  case  the  laws  enacted  and  the  transactions 
completed  under  theni  during  the  military  government  are  vahd, 
and  cannot  be  sub.seijuently  impeached. 

Read:  Wharton,  Int.  Law,  §§  3,  354,  355; 
Woolsey,  Int.  Law,  §  1.53; 
Glenn,  Int.  Law,  §§  168-176,  194; 
Davis,  Int.  Law,  pp.  327-336; 
Moore,  Int.  Law,  §§  21,  1143-1156. 


512  ELEMENTARY   LAW  §  452 

§  452.     Of  Peaceful  Intercourse  between  Belligerents. 

The  existence  of  a  war  between  two  hostile  States  does  not  im- 
ply a  personal  enmity  between  their  rulers  and  inhabitants,  nor 
any  disregard  of  those  moral  obligations  which  are  incumbent 
alike  upon  nations  and  individuals.  It  is,  therefore,  to  be  ex- 
pected that  'peaceful  intercourse  should  be  maintained  between 
them  so  far  as  military  operations  will  permit,  and  this  intercourse 
in  fact  prevails  to  a  considerable  extent.  Thus  though  com- 
merce is  legally  interrupted  by  the  breaking  out  of  war,  yet 
either  belligerent  may  grant  to  its  own  subjects  licenses  to  trade 
with  the  enemy,  and  these  may  take  the  form  of  general  licenses 
to  all  subjects,  or  of  special  licenses  in  favor  of  a  few,  oi  of  li- 
censes limiting  the  traffic  to  certain  vessels,  commodities,  places, 
times,  or  routes.  At  the  inception  of  a  war  an  agreement,  called 
a  cartel,  is  often  made  between  the  hostile  States  containing 
stipulations  as  to  their  intercourse  during  the  coming  strife,  in 
reference  to  the  treatment  and  exchange  of  prisoners,  the  care 
of  the  wounded,  or  the  interchange  of  postal  facilities;  and 
such  agreements  may  be  repeated  with  modifications  as  the 
war  progresses.  Passports  may  be  granted  by  one  State  which 
the  other  will  honor;  and  safe-conducts  may  be  issued  by  a 
commander  or  the  State,  protecting  persons  in  their  journeys 
through  its  hostile  territory.  A  cartel-ship  is  a  vessel  which,  by 
agreement  of  the  contending  States,  is  employed  in  transporting 
exchanged  prisoners  of  war.  It  sails  under  a  safe-conduct 
from  both  parties,  and  both  owe  it  protection  from  external 
interference.  Such  a  vessel  is  not  allowed  to  carry  merchan- 
dise, nor  any  armament  except  the  guns  needed  for  signals 
and  salutes. 

Rem.  Between  the  armies  of  the  contending  nations  special 
negotiations  frequently  occur,  such  as  a  suspension  of  hostilities 
after  a  battle  for  the  removal  of  the  wounded  and  the  burial  of 
the  dead ;  or  an  armistice  or  truce,  restoring  peace  until  a  certain 
object  is  accomplished  or  a  prescribed  term  has  expired.  These 
negotiations  may  take  place  between  the  entire  armies  or  between 
separate  detachments,  as  circumstances  require.  The  temporary 
peace  begins  when  the  truce  is  agreed  to  by  the  parties.  It  binds 
the  individual  combatants,  and  other  persons,  from  the  date  when 
they  receive  official  notice  of  the  agreement.  It  ends  either  at 
the  stipulated  time,  or  after  due  notification  from  one  party  to  the 


§  453  INTERNATIONAL  LAW  513 

other  that  hostilities  are  about  to  be  resumed.  During  the  truce 
each  party  must  remain  in  statu  quo,  so  far  as  its  immediate 
military  condition  is  concerned,  and  neither  can  do  anything  to 
improve  its  situation  which  would  have  been  prevented  if  the  tide 
of  war  had  not  been  stayed.  A  flag  of  truce,  under  the  cover 
of  which  these  negotiations  are  conducted,  is  always  inviolable; 
but  neither  army  is  obl'ged  to  receive  the  messenger  who  bears  it ; 
nor  when  he  comes  during  the  heat  of  battle  must  it  cease  its  fire 
for  fear  of  injury  to  him;  nor  when  it  receives  him  is  it  com- 
pelled to  admit  him  within  its  Unes  without  blindfolding  him  and 
taking  such  other  precautions  as  its  own  safety  recjuires.  The 
bearer  of  the  flag  who  employs  it  as  a  mask  for  treachery,  or  to 
facilitate  his  operations  as  a  spy,  is  liable,  if  detected,  to  the  pen- 
alty of  death.  A  capitulation  is  an  agreemeiit  between  the  victor 
and  the  vanquished  as  to  the  terms  of  the  surrender.  Where  mili- 
tary conditions  alone  are  involved  the  capitulation  may  be  made 
by  the  commanding  officers;  where  political  relation's  are  to  be 
affected  the  hostile  States  must  sanction  the  agreement.  The 
terms  of  the  surrender  may  include  any  stipulations  which  are 
consistent  with  military  honor.  A  safeguard  is  a  protection  ac- 
corded by  a  commander  to  persons  or  property  within  the  limits 
of  his  command,  and  may  consist  in  a  written  order  of  exemption 
from  disturbance  delivered  to  the  persons  or  affixed  to  the  prop- 
erty, or  in  ])lacing  them  in  charge  of  a  sufficient  military  force. 
A  ransom  contract  is  an  agreement  to  pay  a  certain  sum  in  con- 
sideration for  the  redelivery  of  captured  persons  or  yjroperty.  Its 
principal  uses  are  for  the  release  of  vessels,  when  too  remote  at 
the  time  of  capture  to  be  transmitted  to  the  captor  State,  or  in 
exchanging  prisoners  where  differences  in  military  rank  render 
an  exchange  on  etpial  terms  impossible.  In  all  these  forms  of 
friendly  intercourse  between  beUigerents,  and  in  others  which 
from  time  to  time  may  be  adopted,  the  law  of  nations  demands 
the  same  good  faith  and  honest  dealing  as  if  the  parties  were  at 
peace. 

Read:  1  Kent  Com.,  Lect.  viii,  pp.  159-164; 
Wheaton,  Int.  Law,  §§  254,  399-411; 
Wharton,  Int.  Law,  §§  191-195; 
Woolsey,  Int.  Law,  §§  123,  140,  154-157; 
Glenn,  Int.  Law,  §§  195-207; 
Davis,  Int.  Law,  pp.  163,  164,  336-339; 
Moore,  Int.  Law,  §§  492-533,  1157-1162,  1179-1182. 


§  463.     Of  the  Restoration  of  Peace. 

Tlie  restoration  of  |)c;i({'  consists  in  the  pormnnent  ressntion 
of  war.    A  war  mat/  end  by  the  simple  abandonment  of  hostile 

33 


514  ELEMENTARY   LAW  §  453 

operations  on  both  sides,  and  the  gradual  resumption  of  friendly 
relations  between  the  contending  States.  The  date  when  a 
peace  becomes  established  in  this  manner  is  always  doubtful, 
and  the  original  cause  of  the  war  remains  unsettled  and  Uable  at 
any  time  to  be  revived.  A  war  may  also  end  by  conquest,  and  the 
extermination  of  one  of  the  belligerents.  In  this  case,  if  the 
subdued  belligerent  was  an  independent  State,  its  territory  and 
people  pass  into  the  political  organization  of  the  victor  State, 
whose  sovereignty  relates  back  to  the  date  of  occupation,  and 
by  whom  all  the  obligations  of  the  conquered  State  are  assumed. 
If  the  subdued  belligerent  was  a  body  of  insurgents,  a  public  proc- 
lamation by  the  parent  State  that  the  rebellion  has  been  quelled 
marks  the  return  of  peace.  Again,  a  war  may  end  as  the  result  of 
a  treaty  of  peace.  A  treaty  of  peace,  like  other  treaties,  is  usually 
prepared  and  signed  by  representatives  of  the  contending  States, 
and  submitted  to  their  respective  governments  for  ratification. 
Pending  these  negotiations  it  is  customary  to  establish  a  truce, 
which  binds  the  parties  to  remain  in  statu  quo  until  the  result 
of  the  negotiations  can  be  ascertained.  If  peace  is  concluded 
the  treaty  becomes  operative  upon  the  States  from  the  date  of 
signing,  and  upon  individual  combatants  and  citizens  from  the 
time  when  they  are  notified  of  its  execution.  For  hostile  acts 
after  the  signing,  and  before  such  notice,  the  State  of  the  wrong- 
doer is  responsible. 

Rem.  Peace  made  by  treaty  terminates  all  the  controversies 
out  of  which  the  war  arose,  and  implies  amnesty  for  both  public 
and  private  injuries.  If  the  treaty  prescribes  nothing  to  the  con- 
trary, each  party  retains  possession  of  the  territory  or  property  it 
has  acquired  by  arms;  as  to  all  other  matters  rights  remain  as 
they  existed  before  the  war.  When  territory  is  ceded  by  the  treaty 
it  must  be  delivered  to  its  new  sovereign  in  as  good  condition  as 
when  the  treaty  was  signed. 

Read:  1  Kent  Com.,  Lect.  viii,  pp.  165-177; 
Wheaton,  Int.  Law,  §§  538-551; 
Wharton,  Int.  Law,  §§  356,  357; 
Woolsey,  Int.  Law,  §§  158-162; 
Glenn,  Int.  Law,  §§  208-220; 
Da\as,  Int.  Law,  pp.  339-345; 
Moore,  Int.  Law,  §§  1163,  1164. 


§  454  INTERNATIONAL  LAW  515 

Article  II 

OF    THE    RIGHTS    AND    DUTIES    OF    NEUTRALS 

§  454.     Of  Neutral  States. 

Neutrality  may  be  predicatiMl  of  States,  of  persons,  of  vessels, 
and  of  goods  or  other  movable  property.  A  neutral  State  is  one 
whieh  neither  participates  in  the  conflict,  nor  gives  aid  to  either 
of  the  belligerents.  Neutrality  may  be  perfect  or  imperfect.  A 
State  which  adopts  a  poUcy  of  perfect  or  strict  neutrality  must 
refrain  from  any  act  which  assists  the  belligerents,  directly  or  in- 
directly, in  prosecuting  their  military  operations.  It  is  a  breach 
of  such  neutrality  to  furnish  either  of  the  contending  parties  with 
munitions  of  war;  to  loan  them  money  or  guarantee  their  credit ; 
to  arm  or  equip  for  them  vessels  of  war ;  to  permit  its  own  terri- 
tory to  be  used  for  the  enlistment  of  troojis  for  their  service,  or  for 
the  organization  or  departure  of  hostile  forces  against  them,  or  as 
a  base  of  supplies,  or  as  an  habitual  j)lace  of  refuge.  But  strict 
neutrality  does  not  forbid  the  exercise  of  kindness  and  humanity 
toward  a  belligerent  who  is  in  distress ;  and  neutral  ports  are, 
therefore,  open  to  belligerent  vessels  for  shelter  against  perils 
of  the  sea,  for  necessary  maritime  repairs,  and  for  supplies  of  a 
neutral  character  in  quantitysufficient  to  enable  them  to  reach  the 
ports  of  their  own  State.  La?id  forces  driven  witliin  the  lines  of 
neutral  territory  by  a  victorious  army  are  safe  from  further  pur- 
suit ;  but  as  they  cannot  be  allowed  to  use  such  territory  for  mili- 
tary recuperation  they  must  be  disarmed  by  the  neutral  State 
and  detained  until  the  return  of  peace,  or  be  released  under  con- 
ditions which  debar  them  from  further  military  service  during  the 
war.  Fufjitix^e  vessels  entering  neutral  waters  are  secure  from 
capture,  but  cannot  make  such  waters  a  basis  for  their  naval 
operations,  and  may  be  warned  by  the  neutral  State  to  depart 
or  may  be  suffered  to  remain  under  restrictions  which  prevent  a 
violation  of  neutrality.  It  is  the  right  of  neutral  States  to  have 
their  neutrality  respected  by  both  b(>lligerents ;  to  hold  their  terri- 
tory and  their  waters  free  from  the  intercourse  of  either  belliger- 
ent for  a  military  purpose ;  to  make  and  enforce  laws  protecting 
their  own  neutrality;  and  if  their  neutral  privileges  are  disre- 
garded, to  seek  redress  by  war.    During  the  conflict  the  commer- 


516  ELEMENTARY  LAW  §  455 

cial  intercourse  between  the  neutral  and  belligerent  States,  in 
reference  to  ordinary  commodities,  continues  as  in  times  of  peace 
subject  to  the  inevitable  interruptions  caused  by  a  state  of  war. 

Rem.  A  policy  of  imperfect  neutrality  allows  a  State  to  accord 
equal  military  aid  to  each  of  the  belligerents ;  and  it  is  optional 
with  every  State,  in  case  of  war  between  other  States,  to  deter- 
mine which  policy  it  will  adopt.  Imperfect  neutrality  cannot  be 
subjected  to  definite  rules.  Each  belligerent  must  judge  for  itself 
whether  the  neutral  State  preserves  its  pretended  impartiality, 
and  may  on  reasonable  provocation  treat  it  as  an  enemy. 

Read:  1  Kent  Com.,  Lect.  vi,  pp.  115-117,  121-124; 
Wheaton,  Int.  Law,  §§  412-428; 
Wharton,  Int.  Law,  §§  12,  40,  388-402; 
Woolsey,  Int.  Law,  §§  163-170,  174-176; 
Glenn,  Int.  Law,  §§  221-226,  228-233,  235-237; 
Davis,  Int.  Law,  pp.  376-381,  391-400,  404-437; 
Moore,  Int.  Law,  §§  291-307,  1287-1318. 


§  455.     Of  Neutral  Persons. 

A  neutral  person  is  one  whose  voluntary  domicile  is  in  a  neutral 
State.  Since  the  neutrality  of  persons  depends  upon  their  domi- 
cile it  is  evident  that,  at  the  commencement  of  a  war,  all  persons 
domiciled  in  a  neutral  State  are  neutrals,  and  all  persons  domi- 
ciled in  a  belligerent  State  are  belligerents.  A  neutral  person 
may  become  a  hellicjerent  by  removing  his  domicile  into  a  bellig- 
erent State ;  or  by  entering  its  military  or  naval  service ;  or  by 
sailing  as  master  or  seaman  in  its  vessels.  While  he  remains  a 
neutral,  unless  forbidden  by  the  law  of  his  own  neutral  St?te,  he 
may  loan  money,  sell  munitions  of  war,  build  and  arm  battle- 
ships, and  engage  in  any  other  traffic  with  one  or  both  of 
the  belligerents,  at  the  risk  of  the  confiscation  of  the  property 
should  it  be  captured  and  found  to  be  contraband  of  war.  Nor 
will  his  acts  of  this  character  compromise  the  neutrality  of  his 
own  State,  provided  it  endeavors  in  good  faith  to  prevent  him 
from  assisting  the  parties  to  the  conflict.  A  person  domiciled  in 
territory  held  by  organized  insurgents  is  not  a  neutral,  whatever 
his  political  sympathies  may  be,  but  is  legally  an  enemy  of  the 
parent  State. 

Rem.  Domicile,  as  a  test  of  neutrality,  signifies  legal  domicile, 
not  mere  residence  in  or  temporary  transit  through  the  neutral 


§  456  INTERNATIONAL   LAW  517 

or  belligerent  State.  Legal  domicile  is  the  State  to  which  the 
person  is  politically  related  as  a  citizen,  and  this  is  presumed  to 
be  the  State  of  his  residence  until  the  contrary  appears. 

Read:  1  Kent  Com.,  Lect.  iv,  pp.  74-79; 

Wharton,  Int.  Law,  §§  198-200,  352,  353; 
Woolsey,  Int.  Law,  §§  71-74,  172,  173; 
Glenn,  Int.  Law,  §§  184-193,  227,  234; 
Davis,  Int.  Law,  pp.  156-1G3; 
Moore,  Int.  Law,  §§  487..  488. 


§  456.     Of  Neutral  Vessels, 

A  neutral  vessel  is  owned  in  a  neutral  port,  and  sails  under  a 
neutral  flag.  A  neutral  vessel,  comj)lying  with  the  obligations  of 
neutrality,  is  exempt  from  interference  by  either  of  the  bellig- 
erents further  than  is  necessary  to  assure  them  that  those  obli- 
gations are  fulfilled.  Of  this  fact  they  have  a  right  to  satisfy 
themselves,  and  for  this  purpose  the  war  vessels  of  either  bellig- 
erent may  stop  a  neutral  vessel  on  the  high  seas,  examine  its 
papers,  and  if  apparently  necessary^  search  its  cargo;  detaining 
it  no  longer  and  occasioning  it  no  greater  inconvenience  than  is 
inevitable.  Resistance  by  the  neutral  vessel  to  such  an  exami- 
nation, or  any  falsification  of  its  papers  or  wilful  concealment  of 
unlawful  cargo,  dej)rivcs  it  of  the  protection  due  to  neutrals 
and  renders  it  for  the  time  being  a  belligerent.  A  neutral 
vessel,  ignorant  of  the  exi.stence  of  the  war  or  of  the  nation- 
ality of  the  interfering  vessel,  is  not  bound  to  submit  to  search 
and  forfeits  no  neutral  rights  by  its  refusal.  A  breach  of  neu- 
tralitij  may  be  committed  by  a  neutral  vessel  by  knowingly 
conveying  troops  or  official  personages  or  military  despatches 
or  supphes  for  one  of  the  belligerents;  or  by  carrying  to  it 
goods  that  are  contraband  of  war;  or  by  attempting  to  run  a 
lawful  blockade;  or  by  sailing  for  a  belligerent  port  with  the 
intent,  on  the  ])art  of  its  owners,  to  sell  the  ves.sel  to  the  bel- 
ligerent State.  But  the  innocent  transportation  of  a  cargo 
composed  in  part  of  contraband  articles  does  not,  of  it.self, 
comj>romisc  tlie  vessel;  and  where  it  would  have  been  liable  to 
confiscation,  had  it  been  arrestcMl  with  the  contraband  on 
board,  that  liability  ceases  when  the  voyage  is  completed  and 
it  resumes  the  character  of  a  ntiitr;il  vessel. 


518  ELEMENTARY  LAW  §  457 

Rem.  A  neutral  vessel  loses  its  neutrality  by  transfer  to  a 
belligerent  owner,  or  by  adopting  a  belligerent  flag,  or  by  trading 
under  a  belligerent  coasting  license,  and  then  becomes  subject  to 
the  usual  liabilities  of  a  belligerent.  The  fraudulent  transfer  of  a 
belligerent  vessel  to  a  neutral  owner,  in  order  to  prevent  its  cap- 
ture, does  not  change  its  national  character  nor  endow  it  with 
the  privileges  of  a  neutral. 

Read:  1  Kent  Com.,  Lect.  iv,  p.  86;  Lect.  vii,  pp.  152-158; 
Wheaton,  Int.  Law,  §§  340,  341,  440,  441,  502-505; 
Wharton,  Int.  Law,  §§  33,  325-327; 
Woolsey,  Int.  Law,  §§  208-221; 
Glenn,  Int.  Law,  §§  268-277; 
Davis,  Int.  Law,  pp.  479-496; 
Moore,  Int.  Law,  §§  309,  321-328,  1195-1203. 


§  457.     Of  Neutral  Goods. 

Neutral  goods  are  goods  belonging  to  a  neutral  person,  and 
not  contraband  of  war.  Although  some  doubt  remains  as  to  the 
precise  definition  of  neutral  goods  yet  the  later  doctrine  seems 
to  be  that,  with  the  exception  of  contraband  of  war,  all  goods  are 
neutral  which  either  belong  to  neutral  owners  or  are  in  transit 
under  a  neutral  flag.  According  to  this  doctrine  the  movable 
property  of  a  belligerent,  while  forming  part  of  the  cargo  of  a 
neutral  vessel,  and  the  movable  property  of  a- neutral  wherever 
it  may  be,  are  to  be  protected  as  neutral  goods  unless  their  nature 
and  destined  use  prove  them  to  be  contraband  of  war.  This 
rule  does  not  apply  to  property  owned  by  a  citizen  of  a  neutral 
State  and  employed  by  him  in  business  within  the  territory  of 
one  of  the  belligerent  States,  nor  to  the  produce  of  land  owned 
by  a  neutral  in  the  belligerent  State,  since  as  to  his  commercial 
operations  and  his  landed  interests  in  the  belligerent  State  he  is 
regarded,  by  the  law  of  nations,  not  as  a  neutral  but  as  a  bellig- 
erent. In  the  application  of  this  rule  to  neutral  vessels,  and  their 
cargoes,  the  ownership  of  the  goods  is  supposed  to  follow  that  of 
the  flag.  The  cargo  of  a  neutral  vessel  is  presumed  to  belong  to 
neutral  owners ;  the  cargo  of  a  belligerent  vessel  to  belligerents ; 
and  this  presumption  is  conclusive  as  to  neutral  vessels  and 
their  cargoes  but  may  be  rebutted  by  the  neutral  owners  of  the 
cargoes  of  belligerent  vessels. 

Rem.  Neutral  goods  share,  nevertheless,  to  a  considerable 
extent  in  the  fortunes  of  the  vessel  in  which  they  are  contained. 


§  458  INTERNATIONAL   LAW  519 

If  the  vessel  is  a  belligerent  the  goods  are  liable  to  injury  in  con- 
flict, to  capture  and  adjudication,  and  to  all  the  delays  and  ex- 
penses incident  thereto,  although  they  may  finally  be  regained 
by  their  neutral  owner.  If  the  vessel  is  a  neutral  the  goods  are 
subject  to  search  by  the  belligerents,  and  if  their  character,  as 
contraband  or  not,  is  doubtful  the  searching  belligerent  may 
pre-empt  them  for  his  own  use  on  payment  of  a  reasonable  price ; 
while  if  the  vessel  violates  the  obligations  of  neutrality,  and  the 
goods  belong  to  the  same  owner,  they  also  lose  their  neutral 
rights  and  become  spoils  of  war. 

Read:  1  Kent  Com.,  Lect.  \'i,  pp.  124-133; 
Wheaton,  Int.  Law,  §§  442-474,  529; 
Wharton,  Int.  Law,  §§  341-344; 
Woolsey,  Int.  Law,  §§  182-192; 
Glenn,  Int.  Law,  §§  278,  279; 
Da\as,  Int.  Law,  pp.  382-387; 
Moore,  Int.  Law,  §  1336. 


§  458.     Of  Blockades. 

The  most  serious  limitation  upon  the  privileges  of  neutrals 
during  the  time  of  war  is  that  imposed  by  a  blockade.  The  law  of 
nations  recognizes  the  right  of  a  belligerent  State  to  close  the 
ports  of  its  antagonist  against  the  ingress  and  egress  of  all  vessels, 
and  thus  cut  it  off  from  commercial  intercourse  with  the  exter- 
nal world ;  and  this  right  it  is  the  duty  of  every  neutral  to  respect. 
But  to  «?ntitle  a  blockade  to  the  respect  of  neutrals  it  must  be  an 
actual  blockade,  maintained  by  a  sufficient  naval  armament  to  ren- 
der probable  the  capture  of  any  vessel  which  should  undertake  to 
pass  its  lines.  Such  a  blockade  is  not  confined  to  the  mouths  of 
harbors  but  may  extend  indefinitely  along  the  coast,  and  in  front 
of  other  waterways  as  far  as  it  can  be  made  effective.  INIore- 
over,  it  must  be  substantially  continuous  in  point  of  time,  though 
capable  of  interruption  by  stress  of  weather  or  the  pursuit  of  some 
intruding  ves.sel.  A  neutral  vessel  endeavoring  to  enter  a  block- 
aded port  is  not  liable  to  capture  unless  it  has  been  notified  of  the 
establishment  of  the  blockade.  To  secure  this  notice  it  is  cus- 
tomary for  the  blockading  State  to  announce  beforehand,  to  all 
neutral  States,  its  purpose  to  close  the  ports  in  question  at  a  certain 
date ;  and,  in  addition  to  this  warning,  for  the  blockading  fleet  to 
inform  approaching  vessels  of  the  existence  and  extent  of  the 
blockade.    Vessels  leaving  a  neutral  port  after  the  blockade  has 


520  ELEMENTARY   LAW  §  459 

been  proclaimed,  or  lying  in  the  blockaded  port  when  the  block- 
ade is  commenced,  are  presumed  to  have  due  notice;  concern- 
ing other  neutral  vessels  it  must  appear  that  they  had  actual 
knowledge,  or  they  are  not  bound  by  the  blockade.  If  neutral 
vessels  are  in  the  port  when  it  is  closed  they  are  allowed  a  certain 
'period  in  which  to  depart,  and  if  they  are  afterwards  driven  in  by 
storm,  or  by  an  imperative  need  for  provisions  or  repairs,  or  if 
they  are  permitted  to  enter  by  the  blockading  fleet,  they  have  a 
reasonable  opportunity  to  retire.  The  courtesy  of  nations  also 
allows  free  passage  to  neutral  vessels  of  war.  A  violation  of  a 
blockade  consists  in  any  attempt  to  enter  or  leave  a  blockaded 
port  except  in  case  of  maritime  necessity,  or  in  pursuance  of  a 
legal  right  or  of  a  license  granted  by  the  blockading  State.  The 
attempt  begins,  according  to  the  English  and  American  interpre- 
tation, when  the  vessel,  having  then  a  knowledge  of  the  closing  of 
the  port,  leaves  its  home  port  with  the  intention  of  running  the 
blockade.  Other  nations  hold  that  no  fault  is  committed  until 
the  vessel  reaches  and  endeavors  to  pass  through  the  lines  of  the 
blockade.  Such  attempt  renders  the  vessel  liable  to  capture  and 
condemnation,  and  its  cargo  also  if  belonging  to  the  owners  of  the 
vessel,  or  to  other  persons  in  conspiracy  with  them.  This  liability 
continues  from  the  date  of  the  attempt  during  the  remainder  of 
the  voyage,  unless  meanwhile  the  blockade  has  been  abandoned. 

Rem.  A  blockade,  once  established,  is  presumed  to  be  in 
force  until  formally  discontinued,  but  may  be  ended  by  the  cap- 
ture or  permanent  dispersion  of  the  blockading  fleet,  or  by  the 
conquest  or  cession  of  the  blockaded  territory.  Justice  to  neutral 
States  requires  that  they  should  be  informed  of  the  determination 
of  the  blockading  State  to  withdraw  its  fleet,  as  soon  as  possible 
after  that  decision  has  been  reached. 

Read:  1  Kent  Com.,  Lect.  vii,  pp.  143-152; 
Wheaton,  Int.  Law,  §§  509-523; 
Wharton,  Int.  Law,  §§  359-363,  365; 
Woolsey,  Int.  Law,  §§  202-207; 
Glenn,  Int.  Law,  §§  254-267; 
Davis,  Int.  Law,  pp.  468-478; 
Moore,  Int.  Law,  §§  1266-1286. 

§  459.     Of  the  Remedies  for  Violations  of  Neutrality. 

The  violation  of  neuiraJity  by  a  neutral  State  or  by  one  of  the 
belligerents  is,  if  the  aggrieved  State  sees  fit  to  so  regard  it,  a  suf- 


§  459  INTERNATIONAL  LAW  52] 

ficient  cause  for  war.  Less  stringent  measures  are,  however, 
usually  employed,  since  if  the  injured  party  can  be  placed  in  statu 
quo  it  is  considered  that  the  national  honor  and  security  have  been 
preserved.  Thus  where  a  vessel  of  one  of  the  belligerents  has 
been  driven  by  the  other  into  neutral  waters,  and  there  captured 
without  resistance,  the  neutral  power  may  seize  it  and  restore  it  to 
its  owner ;  and  must  do  so  if  jiossible,  or  answer  to  the  State  of 
the  owner  for  its  failure.  Where  property  of  one  belligerent  is  in- 
jured by  the  other  upon  neutral  territory,  the  neutral  must  de- 
mand and  enforce  a  reasonable  reparation.  If  prisoners  of  war 
are  brought  by  a  belligerent  into  a  neutral  State,  the  neutral 
must  release  them  or  become  liable  to  their  own  State  for  aiding 
the  belligerent  in  their  confinement.  Where  citizens  of  the  neutral 
State,  while  within  its  jurisdiction,  afford  military  assistance  to 
either  of  the  contending  States,  the  neutral  State  must  interfere 
and  prevent  or  punish  their  offences,  or  it  will  adopt  their  acts  and 
subject  itself  to  reprisal  or  to  war. 

Rem.  The  violation  of  neutrality  by  persons,  vessels,  or  goods 
does  not  involve  the  State  to  which  they  may  belong  unless  the 
violation  occurred  within  its  territory.  The  treatment  of  such 
persons  as  belligerents,  and  of  such  goods  and  vessels  as  legiti- 
mate spoils  of  war,  affords  for  these  offences  an  adequate  redress. 

Read:  1  Kent  Com.,  Lect.  vi,  pp.  117-121; 
Wheaton,  Int.  Luw,  §§  429,  432-435; 
Wharton,  Int.  Law,  §§  18.  19,  21,  223-230; 
Glenn,  Int.  Law,  §§  238-240; 
Davis,  Int.  Law,  pp.  3.')0-354,  400-403; 
Moore,  Int.  Law,  §§  1319-1335. 


BOOK  IV 

OF   PUBLIC   WRONGS   AND   REMEDIES 

§  460.     Of  the  Nature  of  Public  Wrongs. 

Every  invasion  of  a  public  right  is  a  public  wrong,  whether  the 
right  be  that  of  one  State  against  another  State,  or  that  of  a  State 
against  a  subject,  or  that  of  a  subject  against  a  State.  Wrongs 
committed  by  one  State  against  another  are  infringements  of 
the  rules  of  international  law;  are  irremediable  by  legal  or  ju- 
dicial processes;  and  can  be  redressed  only  through  voluntary 
concessions  between  the  States,  or  through  some  form  of  retali- 
ation, or  through  war.  Wrongs  inflicted  by  States  upon  their 
subjects  are  violations  of  constitutional  rights  for  which  relief, 
if  not  obtainable  by  suits  or  prosecutions  against  the  officers  of 
the  offending  State,  must  be  pursued  through  political  measures, 
peaceable  or  forcible  as  the  case  requires.  Wrongs  committed 
by  subjects  against  the  State  are  of  two  classes :  (1)  Those  which 
invade  some  special  right  of  the  State,  from  whose  violation  the 
State  itself  sustains  a  direct  injury;  (2)  Those  which  primarily 
infringe  some  private  right  which  the  State  has  undertaken  to 
protect,  and  at  the  same  time  indirectly  prejudice  the  welfare 
of  the  State.  The  first  of  these  two  classes  is  a  purely  public 
wrong ;  the  second  has  a  double  aspect,  —  as  a  private  wrong 
demanding  a  private  remedy  in  a  civil  action,  and  as  a  public 
wrong  invoking  the  interference  of  the  State  for  its  public  prose- 
cution and  punishment.  To  wrongs  committed  by  subjects 
against  the  State,  of  either  of  these  classes,  is  given  the  name  of 
^^ Crimes."  Various  definitions  of  the  word  "crime"  may  be 
found  in  the  reports  and  treatises ;  some  declaring  its  distinctive 
attribute  to  be  its  prohibition  by  the  State ;  others,  its  injurious 
effect  upon  the  public ;  and  others,  its  prosecution  and  punish- 
ment by  the  State  in  its  own  name.    Considered  in  its  intrinsic 


§  460  PUBLIC  WRONGS  523 

nature,  as  well  as  in  the  attitude  assumed  toward  it  by  the  State, 
it  may  be  defined  as  "a  wrong  directly  or  indirectly  affecting  the 
welfare  of  the  State,  to  the  commission  of  which  the  State  has 
annexed  certain  pains  and  penalties,  and  which  the  State  prose- 
cutes and  punishes  in  its  own  name."  This  definition  at  once 
characterizes  the  wrong  and  indicates  the  mode  of  its  redress, 
and  thus  suggests  the  natural  division  of  the  law  governing  the 
whole  subject  into  (1)  The  Law  of  Crimes ;  and  (2)  The  Law  of 
Criminal  Procedure. 

Rem.  The  reasons  which  determine  the  State  to  treat  as 
public  wrongs  such  injuTies  as  primarily  invade  mere  private 
rights  vary  with  the  country  and  the  age.  If  under  existing  social 
conditions,  and  according  to  current  moral  standards,  the  wrong 
is  of  great  enormity,  or  of  evil  example,  or  of  dangerous  tenden- 
cies, or  of  far-reaching  consequences,  it  is  the  wise  policy  of  the 
State  to  endeavor  to  prevent  it  by  visiting  it  with  a  penalty. 
When  private  wrongs  once  public  lose  their  prejudicial  in 
fluence,  through  changes  in  the  social  fabric,  the  laws  forbid- 
ding them  are  properly  repealed  or  become  obsolete,  and  they 
lapse  back  into  the  class  of  purely  private  wrongs.  Whether  the 
elevation  of  a  private  into  a  public  wrong  destroys  or  suspends  its 
private  character  is  also  a  ({uestion  which  the  State  decides  accord- 
ing to  its  view  of  the  public  interest.  In  certain  grave  cases,  like 
homicide,  it  has  for  many  centuries  been  held  that  the  private 
wrong  was  submerged  in  the  public  offence,  and  even  now  it  is 
only  in  special  circumstances  and  by  virtue  of  particular  stat- 
utes that  a  private  remedy  for  this  wrong  can  be  obtained.  In 
other  cases  the  private  wrong,  though  not  extinguished,  was 
suspended  and  compelled  to  wait  for  its  redress  until  the  public 
wrong  had  been  punished  or  condoned.  In  still  less  flagrant 
cases  concurrent  remedies  were  available  for  both  the  party  in- 
jured and  the  State.  In  this  country,  at  present,  the  prevailing 
rule  recognizes  the  private  as  well  as  the  public  character  of 
all  these  pubUc  wrongs  excepting  homicide,  and  permits  the 
wrongdoer  to  be  sued  and  prosecuted  at  the  same  time  for  his 
offence. 

Read:  4  Bl.  Com.,  pp.  1-7; 
Desty,  Criminal  J^aw,  §  1 ; 
May,  Law  of  Crimes,  §  1 ; 
1  Bishop,  Criminal  Law,  §§  .30-42,  229-254; 
Wharton,  Criminal  Law,  §§  14,  15; 
McClain,  Criminal  Law,  §§  1-4, 


524  ELEMENTARY   LAW  §  461 


PART    I  — OF    THE    LAW    OF    CRIMES 

§  461.     Of  the  Intrinsic  Nature  of  Crime. 

A  crime  being  an  action  or  omission  which  the  State  regards 
as  prejudicial  to  its  welfare,  and  therefore  prohibits  under  pain 
of  punishment,  the  State  alone  is  the  judge  whether  it  should  be 
forbidden  and  what  should  be  its  penalty;  and  on  these  points 
the  action  of  the  State,  if  within  its  constitutional  powers,  is 
final  and  binding  alike  upon  its  courts  and  citizens.  This  deci- 
sion of  the  State  may  be  announced  in  a  single  statute  defining 
the  offence  and  prescribing  the  penalty,  or  it  may  be  embodied  in 
various  statutes  and  doctrines  of  the  unwritten  law  which,  taken 
together,  describe  and  prohibit  the  crime.  But  until  the  State 
in  some  form  promulgates  this  decision  the  wrongful  action  or 
default  does  not  become  a  crime,  nor  is  its  perpetrator  liable 
to  punishment;  and  when  the  State  repeals  the  law,  in  which 
this  decision  was  expressed,  the  action  or  default  at  once  ceases 
to  be  a  crime,  and  all  liabilities  under  the  law,  as  formerly  exist- 
ing, are  immediately  discharged.  The  intrinsic  nature  of  a 
crime  is  not,  therefore,  a  question  of  fact  to  be  solved  by  an  analy- 
sis of  actions  and  omissions,  but  a  question  of  law  to  be  settled 
by  reference  to  legal  definitions  and  distinctions.  These  legal 
definitions  and  distinctions  relate  (1)  To  the  Ingredients,  De- 
grees, and  Perpetrators  of  Crimes  in  general;  and  (2)  To  the 
Classes  and  Species  of  Criminal  Actions  and  Omissions. 

Rein.  In  statutory  definitions  of  crime,  as  in  all  other  statutes, 
the  State  constantly  builds  on  the  foundations  of  the  common  or 
unwritten  law,  and  thereby  makes  the  unwritten  law  an  essential 
ingredient  of  the  definition.  Thus  where  a  statute  declares  an 
act  to  be  a  public  wrong,  but  makes  no  mention  of  the  punish- 
ment, the  unwritten  law  supplies  the  omission  according  to  the 
class  to  which  such  crimes  belong.  So  also  where  the  statute  af- 
fixes a  penalty  to  a  specific  act  without  otherwise  forbidding  it, 
the  general  principles  of  law  give  to  the  statute  a  prohibitive 
interpretation,  and  regard  it  as  affirming  that  the  action  is  a 
crime.     As  a  matter  of  legal  liistory  tliis  creation  of  crimes  by 


§461 


NATURE  OF  CRIMES 


525 


the  statutory  development  of  the  unwritten  law,  as  well  as  by 
the  judicial  extension  of  ancient  offences  to  embrace  new  forms 
of  injury,  is  continually  occurring  in  the  effort  of  the  State  to 
keep  pace  with  the  ingenuity  of  criminals,  and  the  increasing 
facilities  and  opportunities  for  crime. 

Read:  1  Bl.  Com.,  pp.  53-58; 
Walker,  American  Law,  §  253; 
Clark,  Elementary  Law,  §§  85,  86; 
Hawley,  Criminal  Law,  pp.  3-7; 

Clark  and  Marshall,  Criminal  Law,  §§  1,  2,  4,  5,  7-18; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §§  1,  2,  3; 
Kenney,  Criminal  Law,  pp.  1-23; 
Wharton,  Criminal  Law,  §§  15  a-20,  28-31  b; 
McClain,  Criminal  Law,  §§  5-8,  81-110. 


526  ELEMENTARY  LAW  §§  462,  463 


CHAPTER  I 

OP   THE    INGREDIENTS,    DEGREES,    AND    PERPETRATORS 
OF    CRIMES    IN    GENERAL 

§  462.     Of  the  Characteristics  of  Crimes  in  General. 

Crimes,  as  such,  have  certain  general  characteristics,  common 
to  all  crimes,  concerning  which  the  law  prescribes  definite  and 
imperative  rules.  Every  particular  crime  has  also,  in  addition 
to  these  general  characteristics,  certain  special  characteristics, 
equally  definite  and  imperative,  in  the  absence  of  any  of  which 
the  law  will  not  recognize  the  alleged  action  or  omission  as  that 
particular  crime.  These  general  characteristics  relate  either  to 
the  ingredients  of  which  the  action  or  omission  must  consist;  or 
to  the  degrees  of  criminality  attached  by  the  law  to  individual 
actions  or  omissions  on  account  of  their  relation  to  each  other 
or  to  the  circumstances  under  which  they  are  committed ;  or  to 
the  persons  by  whom  the  actions  or  omissions  are  perpetrated. 

Rem.  The  rules  defining  and  prescribing  these  general  char- 
acteristics of  crime  are,  to  a  great  extent,  permanent  in  the  law. 
This  is  especially  true  of  those  relating  to  the  ingredients  of 
crime  which,  being  founded  in  the  nature  of  things,  are  not 
varied  by  changes  in  human  opinion  or  in  social  conditions. 
Decided  cases  in  reference  to  these  are,  therefore,  usually  of  uni- 
versal authority  and  rarely  qualified  by  statute,  while  other  rules 
are  more  or  less  subject  to  variation  by  local  laws. 

Read;    May,  Law  of  Crimes,  §  12; 

1  Bishop,  Criminal  Law,  §§  773-785  o; 
McClain,  Criminal  Law,  §  16. 

SECTION  I 

OF  THE   INGREDIENTS   OF   CRIME 

§  463.     Of  the  Criminal  Act. 

Every  crime  is  composed  of  two  ingredients:  (1)  The  Crimmal 
Act;    and  (2)  The  Criminal  Intent.     The  criminal  act  is  that 


1 


§  463  NATURE  OF  CRIMES  527 

action  or  omission  which  the  law  forbids.  The  criminal  intent 
is  that  condition  of  the  actor's  mind  in  consequence  of  which 
the  criminal  act  has  been  performed.  The  criminal  act  in  any 
given  crime  is  defined  by  the  rule  of  law  which  forbids  its  per- 
petration; and  this  rule,  like  all  other  penal  laws,  is  strictly 
interpreted  in  favor  of  the  person  charged  with  crime,  so  that  no 
matter  how  similar  his  conduct  may  have  been  to  that  forbidden 
by  the  law  it  is  not  that  crime  unless  it  corresponds  precisely 
with  the  definition  which  the  law  contains.  The  criminal  act  is 
always  physical,  and  may  be  both  physical  and  mental.  When 
it  is  wholly  physical  it  may  consist  in  words,  or  actions,  or  in 
omissions  to  act  when  action  is  legally  required ;  and  the  specific 
mental  purpose  with  which  it  is  performed  is  immaterial,  and 
neither  adds  to  nor  extenuates  its  guilt.  Where  the  act  derives 
its  criminal  characteristic  from  the  purpose  which  inspires  its 
perpetrator,  and  the  object  whose  accomplishment  he  has  in 
view  in  its  commission,  the  criminal  act  is  partly  physical  and 
partly  mental ;  and  the  physical  act  without  the  mental  purpose 
is  not  the  criminal  act  and,  therefore,  is  not  the  crime. 

Rem.  Both  a  criminal  act  and  a  criminal  intent  are  neces 
sary  to  constitute  a  crime,  for  the  law  does  not  assume  to  punish 
thoughts  unless  externally  expressed,  nor  to  hold  persons  respon- 
sible for  actions  unless  they  were  both  conscious  and  voluntary. 
"Actus  non  facit  reum  nisi  mens  sit  rea."  Moreover,  these  two 
ingredients  must  concur  in  point  of  time ;  otherwise  the  act  is  not 
the  offspring  of  the  intent,  nor  could  the  moral  guilt,  without 
which  crime  is  impossible,  be  imputed  to  the  act  if  the  act  were 
not  performed  at  the  moment  when  the  guilty  knowledge  and 
intent  were  present  in  the  mind.  The  criminal  intent,  thus  de- 
scribed as  one  of  the  necessary  ingredients  of  every  crime,  must 
not  be  confounded  with  that  mental  part  of  the  criminal  act 
which  pertains  to  certain  crimes  only  but  from  which  it  is  totally 
different  both  in  fact  and  in  law,  as  will  hereafter  appear. 

Read:  4  Bl.  Cora.,  pp.  20,  21 ; 

Hawley,  Criminal  I  av/,  pp.  23-25; 

Desty,  Criminal  Lav.-,  §§  5,  13-20  a; 

May,  Law  of  Crime.;,  §§  5-8,  38; 

Clark  and  Marshall,  Criminal  Law,  §§  109-118; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §§  20,  30-32,  54; 

Archbold,  Criminal  Procedure,  pp.  44-48; 

1  Bishop,  Criminal  Law,  §§  204-208  a,  223-228.  417-424,  430-441; 

Wharton,  Criminal  Law,  §§  91-93,  125-135,  246-248; 

McClain,  Criminal  Law,  §§  180-198. 


528  ELEMENTARY   LAW  §  464 

§  464.     Of  the  Criminal  Intent. 

The  criminal  intent  is  that  condition  of  the  actor's  mind  in 
which  his  intellect  discerns  the  nature  of  the  criminal  act  and 
its  unlawfulness,  and  his  wall  determines  that  the  act  shall  be 
performed.  The  existence  of  this  criminal  intent  is  presumed  by 
latv  from  the  commission  of  the  act.  Hence  the  State  in  prosecut- 
ing criminals  has  no  occasion  to  offer  evidence  to  prove  the  ex- 
istence of  the  criminal  intent,  unless  the  accused  alleges  and 
attempts  to  show  that  at  the  time  of  the  commission  of  the  crim- 
inal act  his  intellect  was  incapable  of  discerning  the  nature  and 
unlawfulness  of  the  act,  or  his  will  was  under  such  restraint 
that  the  act  was  involuntary.  The  law  recognizes  such  incapacity 
or  restraint  in  the  six  following  conditions:  (1)  Infancy;  (2) 
Insanity;  (3)  Mistake  of  fact;  (4)  Accident;  (5)  Necessity; 
(6)  Compulsion.  The  proof  of  any  one  of  these  successfully 
rebuts  the  ordinary  presumption  of  criminal  intent,  and  shows 
that  though  the  criminal  act  has  been  committed  the  actor,  in 
committing  it,  did  not  perpetrate  a  crime. 

Rem.  The  presumption  of  the  criminal  intent  from  the  com- 
mission of  the  criminal  act  is  justified  partly  by  experience  and 
partly  by  the  dictates  of  public  policy.  Experience  teaches  that 
the  performance  of  any  act,  not  automatic  in  its  character,  by  a 
being  endowed  with  intellect  and  will  is  in  most  cases  coupled 
with  a  knowledge  of  the  nature  of  the  act  and  a  determination  to 
commit  it,  and  the  presumption  thence  arising  that  all  acts  have 
the  same  origin  and  entail  the  same  responsibility,  though  not  ir- 
rebuttable, is  yet  so  strong  that  the  State  may  justly  throw  upon 
the  perpetrator  of  a  criminal  act  the  burden  of  its  refutation. 
That  the  perpetrator  of  a  voluntary  criminal  act  knew  the  act 
to  be  unlawful  is  a  presumption  which  public  policy  does  not 
permit  to  be  rebutted.    "  Ignorantia  lecjis  non  excusat." 

Read:  Walker,  American  Lav,-,  §§  254,  256; 
Clark,  Elementary  Law,  §§  89,  90; 
Hawley,  Criminal  Law,  pp.  1-3,  25-29,  37-40; 
Desty,  Criminal  Law,  §§6-8  6,  34-35  6; 
May,  Law  of  Crimes,  §§  26-31,  51-57; 
Clark  and  Marshall,  Criminal  Law,  §§  54-62,  73-75; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §§  13-15,  19,  33,  34,  36; 
Kenney,  Criminal  Law,  pp.  33-^4,  57-59,  62-64; 
1  Russell  on  Crimes,  p.  160; 
Archbold,  Criminal  Procedure,  p.  51 ; 

1  Bishop,  Criminal  Law,  §§  216-222,  285-300,  313-321,  425-429.' 
Wharton,  Criminal  Law,  §§  84-86,  106-124; 
McClain,  Criminal  Law,  §§  111-121,  123,  124,  127-130,  1.32. 


§§  465,  466  NATURE  OF  CRIMES  529 

§  465.     Of  the  Criminal  Intent:  Infancy. 

An  infant  under  seven  is  conclusively  presumed  by  law  to  be 
without  sufficient  mind  and  will  to  form  a  criminal  intent.  Above 
the  age  of  fourteen  he  is  presumed,  but  not  conclasively,  to  be 
of  normal  capacity,  and  hence  responsible  for  all  his  acts.  Be- 
tween the  ages  of  seven  and  fourteen  the  law  makes  no  specific 
presumption,  but  leaves  the  question  open  as  a  question  of  fact 
to  be  decided  by  the  jury,  upon  evidence  concerning  his  actual 
mental  condition,  with  the  proviso  that  if  they  are  in  doubt  as  to 
his  capacity  he  must  be  acquitted. 

Rem.  The  presumption  that  an  infant  under  seven  is  inca- 
pable of  crime  is  an  arbitrary  rule  of  law,  adopted  to  avoid  the 
necessity,  in  every  individual  case,  of  proving  the  actual  men- 
tal condition  of  the  accused  child.  It  is  justified  by  the  common 
opinion  of  mankind  which  fixes  the  '^ age  of  reason,"  or  the  period 
when  moral  responsibility  begins,  at  the  age  of  seven  years.  The 
presumption  that  an  infant  over  fourteen  is  able  to  judge  of  and 
direct  his  actions  corresponds  with  the  ordinary  social  and  legal 
rules  which  allow  infants  of  that  age  to  marry  and  become  heads 
of  families,  to  establish  themselves  in  business,  and  to  assume 
general  control  over  their  conduct. 

Read:  4  Bl.  Com.,  pp.  21-24; 
Rob.  Am.  Jur.,  §  30; 
Clark,  Elempntary  Law,  §  90; 
Hawley,  Criminal  Law,  pp.  7,  8; 
Desty,  Criminal  Law,  jj§  21-22  d; 
May,  Law  of  Crimes,  §§  3,5.  36; 
Clark  and  Marsliall,  Criminal  Law,  §§  88-92; 
Clark,  Criminal  Law,  (Tiffany  Ed.)  §§  21,  22; 
Kcnncy,  Criminal  Law,  pp.  45,  47; 
1  Russell  on  Crimes,  pp.  11.3-118; 
Archbold,  Criminal  Procedure,  pp.  9-16; 
1  Bisiiop.  Criminal  Law,  §§  367-373; 
Wharton,  Criminal  Law,  §§  67-74; 
McClain,  Criminal  Law,  §§  149-153. 

§  466.     Of  the  Criminal  Intent:  Insanity. 

The  doctrine  that  an  insane  prison  cannot  commit  a  crime  is 
true  only  when  his  insanity  is  of  such  a  character  and  extent  that, 
like  the  irresponsil>le  infant,  he  lacks  the  mental  cajiacity  to 
understand  the  nature,  consequences  or  guilt  of  the  alleged  crim- 
inal act,  or  has  no  such  control  over  his  conduct  that  he  could 
restrain  himself  from  its  commission.     The  forms  of  insanity 

34 


530  ELEMENTARY   LAW  §  467 

are  multitudinous,  —  general,  special ;  permanent,  transient ; 
slight,  severe;  and  every  instance  must  be  judged  by  itself,  by 
comparing  the  content  and  consequences  of  the  criminal  act 
with  the  then  existing  mind  and  will  of  the  accused.  Thus  a 
person  whose  intellectual  and  volitional  faculties  were  perma- 
nently and  seriously  impaired  could  not  be  held  responsible 
for  any  criminal  act  whatever,  while  a  person  partially  deranged, 
like  a  kleptomaniac,  might  be  entirely  sane  in  every  other  par- 
ticular, and  therefore  guilty  of  any  crime  save  that  of  theft. 

Rem.  Upon  whom  rests  the  burden  of  proof,  when  insanity  is 
urged  as  a  defence,  has  sometimes  been  disputed.  Certain  de- 
cisions hold  that,  as  every  person  is  presumed  to  be  innocent  until 
he  is  proved  guilty,  the  State  must  allege  and  show  beyond  a 
reasonable  doubt  that  the  accused  was  sane  at  the  time  the  act 
was  committed.  Others  maintain  that,  as  every  person  is  pre- 
sumed to  be  of  normal  capacity  until  his  abnormality  is  evident, 
it  is  the  duty  of  the  accused  to  aver  and  prove  his  insanity  beyond 
reasonable  doubt.  The  better  opinion  seems  to  be  that  as  in- 
sanity is  a  matter  of  defence  the  accused  must  raise  the  question, 
and  support  his  claim  by  sufficient  evidence  to  create  in  the 
minds  of  the  jury  a  reasonable  doubt  as  to  his  mental  capacity. 
This  opinion  secures  to  the  accused  the  benefit  of  the  general 
presumption  of  innocence,  and  the  opportunity  to  rebut,  if  he 
can,  the  general  presumption  of  sanity. 

Read:  4  Bl.  Com.,  pp.  24-26; 
Rob.  Am.  Jur.,  §§  32-34,  38; 
Clark,  Elementary  Law,  §  90; 
Hawley,  Criminal  Law,  pp.  8-16; 
Desty,  Criminal  Law,  §§  23-29  c; 
May,  Law  of  Crimes,  §  §  39-49 ; 
Clark  and  Marshall,  Criminal  Law,  §§  9.3-106; 
Clark,  Criminal  Law  (Tififany  Ed.),  §§  23-29; 
Kenney,  Criminal  Law,  pp.  47-54; 
1  Russell  on  Crimes,  pp.  118-145; 
Archbold,  Criminal  Procedure,  pp.  16-39; 
1  Bishop,  Criminal  Law,  §§  374-407; 
Wharton,  Criminal  Law,  §§  32-66; 
Underhill,  Criminal  Evidence,  §§  154-168; 
McClain,  Criminal  Law,  §§  154-179; 
Rice,  Criminal  Evidence,  §§  396-416. 

§  467.     Of  the  Criminal  Intent:  Mistake  of  Fact. 

A  person  of  normal  mind  and  will,  and  therefore  capable  of 
understanding  the  nature  and  consequences  of  the  criminal  act, 


§  467  NATURE  OF  CRIMES  531 

may  nevertheless  fail  to  understand  them  for  want  of  sufficient 
knowledge.  Where  his  ignorance  is  not  due  to  his  own  care- 
lessness or  indifference,  his  want  of  knowledge  is  not  his  own 
fault ;  and  if  he  acts  prudently,  upon  such  knowledge  as  he  has, 
he  is  neither  morally  nor  criminally  responsible.  Thus  a  careful 
nurse,  administering  the  wrong  medicine  by  mistake,  may  inno- 
cently kill  her  patient ;  or  one  man,  justly  believing  from  appear- 
ances that  another  is  about  to  make  a  dangerous  attack  upon  his 
life,  may  lawfully  anticipate  the  danger  by  slaying  his  apparent 
adversary.  Mistakes  of  this  kind,  due  to  inevitable  human 
infirmities  and  limitations,  frequently  occur.  The  law,  while 
not  relieving  the  mistaken  actor  from  liability  to  the  injured  party 
in  a  civil  suit,  applies  to  him  the  rule  that  if  in  good  faith,  and 
upon  a  reasonable  belief  that  certain  things  are  true,  he  does 
an  act  which  if  those  things  were  true  would  not  be  a  crime, 
the  fact  that  those  things  were  not  true  cannot  change  the  char- 
acter of  his  mental  operations,  nor  justify  the  imputation  to  him 
of  a  criminal  intent. 

Rem.  In  the  application  of  this  rule  by  the  courts  great  con- 
fusion and  misunclerstanding  may  easily  arise.  'I'he  rule  has  7io 
relation  to  cases  where  the  accused  raises  the  issue  of  self-defence  ; 
for  there  the  accused  justifies  his  conduct  on  the  ground  that 
there  was  no  mistake  of  fact  because  the  apparent  attack  which 
h'^  resisted  was  actually  made.  Nor  does  the  rule  protect  a  per- 
son who  intending  one  crime  by  mistake  commits  another,  for  there 
the  criminal  intent  presumed  by  law  is  present  though  directed  to 
a  different  criminal  act.  Nor  can  one  avail  himself  of  this  de- 
fence who  acts  in  ignorance  when  the  law  forbids  him  to  act  at  all 
until  he  has  accjuired  {)roper  know  ledge,  —  as  in  some  cases 
where  the  accused  is  charged  with  selling  adulterated  provisions. 

Read:  4  Bl.  Com.,  p.  27; 

Clark,  Elementary  Law,  §  89; 

Hawley,  Criminal  Law,  pp.  29-36; 

May,  Law  of  Crimes,  §  .50; 

Clark  and  Marshall,  Criminal  T>aw,  §§  G8-72; 

Clark,  Criminal  I>aw  (Tiffany  I*.il.).  §  35; 

Kcnney,  Criminal  Law,  pp.  00-62; 

1  Bishop,  Criminal  Law,  §§  301-312; 

Wharton,  Criminal  Law,  §§  S7-90; 

McClain,  Criminal  Law,  §§  131-135. 


532  ELEMENTARY   LAW  §  468 

§  468.     Of  the  Criminal  Intent:  Accident. 

An  accidental  criminal  act  raises  no  presumption  of  a  criminal 
intent.  Accident  may  be  predicable  either  of  an  act  or  of  its 
consequences.  An  act  itself  may  be  accidental  in  two  ways :  (1) 
Where  the  actor  did  not  intend  to  perform  any  act  at  all;  (2) 
Where  he  intended  one  act  but  performed  another.  To  slip  and 
fall  against  another  person,  and  thereby  injure  him,  would 
be  an  instance  of  the  former;  to  discharge  a  pistol  in  the  en- 
deavor to  extract  the  cartridge  would  be  an  example  of  the  latter. 
In  the  first  case,  if  the  actor  were  free  from  negligence,  no  fault 
whatever  could  be  imputed  to  him.  In  the  second,  if  the  act 
which  he  intended  to  perform  were  lawful,  and  he  exercised  due 
diligence  to  confine  his  act  within  the  limits  of  liis  intention,  the 
unintentional  excess  which  caused  the  explosion  would  entail  no 
criminal  liability  upon  him.  The  consequences  of  an  act  are 
accidental  when,  though  the  actor  fully  understood  the  nature 
of  liis  act  and  intended  to  perform  it  as  he  has  performed  it,  yet 
the  results  which  followed  from  it  were  of  such  a  strange  and 
unusual  character  that  he  could  not  have  been  expected  to 
foresee  them.  In  this  case,  if  his  act  were  lawful  and  performed 
with  proper  care,  no  guilt  attaches  to  him.  But  if  his  act  were 
unlawful,  or  negligent,  a  further  distinction  must  be  made 
between  those  unexpected  consequences  which  grow  out  of  the 
known  or  knowable  nature  of  the  act,  and  those  which  are  pro- 
duced by  certain  of  its  attributes  which  have  hitherto  been 
beyond  the  reach  of  human  knowledge,  or  by  the  concurrent 
operation  with  it  of  extraneous  causes  whose  presence  could  not 
have  been  anticipated.  Of  all  the  consequences  which  follow 
from  the  known  or  knowable  nature  of  a  negligent  or  unlawful 
act  the  actor  takes  the  risk,  and  they  measure  his  responsibility 
whether  liis  personal  knowledge  extends  to  them  or  not.  Thus 
the  perpetrator  of  a  simple  assault  is  held  guilty  of  a  homicide 
when  from  a  possible  but  unexpected  disease  engendered  by  the 
injury,  or  from  its  customary  surgical  treatment,  the  victim  dies, 
although  the  blow  was  given  with  no  intent  to  kill.  But  when 
the  consequences  were  occasioned  by  the  then  undiscoverable 
though  since  discovered  attributes  of  the  act,  or  by  the  co-opera 
tion  with  it  of  unanticijiated  causes,  they  lie,  neither  in  fact 
nor  by  any  fair  presumption,  within  the  range  of  the  intentioi 


§  469  NATURE  OF  CRIMES  533 

of  the  actor,  nor  can  he  be  justly  chargeable  with  them  as  con- 
stituent elements  of  his  criminal  act.  Thus  the  vendor  of  ad- 
ulterated food  is  guilty  of  an  unlawful  act,  and  is  responsible 
for  the  harm  sustained  by  the  consumer  from  its  known  or 
knowable  injurious  effects.  But  should  the  food  contain  some 
poisonous  substance  whose  presence  in  such  food  was  never 
hitherto  detected,  or  should  its  union  in  the  stomach  of  the  con- 
sumer with  extraneous  substances  produce  deleterious  combina- 
tions which  destroy  his  life,  no  reasonable  person  would  impute 
his  death  either  to  the  intent  or  to  the  acts  of  the  vendor. 

Rem.  The  distinctions  between  an  act  and  its  consequences, 
and  between  the  different  relations  of  conse([uences  to  acts,  often 
become  of  primary  imjjortance  in  criminal  prosecutions,  and  to 
disregard  them  might  easily  and  unjustly  aggravate  a  mild  of- 
fence into  a  heinous  crime.  Many  cases  of  homicide  present 
these  questions,  which  from  the  ignorance  or  carelessness  of  coun- 
sel are  liable  to  pass  unnoticed.  The  legal  acumen  of  the  great 
criminal  lawyer  is  no  less  manifest  in  the  discovery  and  presen- 
tation of  such  (listinctions  to  the  conrt  than  are  his  resources 
as  an  advocate  in  his  skill  in  handling  evidence  and  his  appeals  to 
the  jury. 

Read:  4  Bl.  Com.,  pp.  26,  27; 

Clark,  Elementaiy  Law,  §  89; 

Desty,  Criminal  Law,  §§  30-30  b; 

Archbold,  Criminal  Procedure,  pp.  49-51; 

1  Bishop,  Criminal  Law,  §§  323-345; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §§  37,  67. 

§  469.     Of  the  Criminal  Intent:  Necessity. 

A  criminal  act  raises  no  presumption  of  a  criminal  intent 
when  committed  under  the  pressure  of  inexorable  necessity. 
The  neres.sitij  here  contemplated  resides  not  in  tiie  act  itself,  for 
Hien  the  act  would  not  be  voluntary,  nor  in  the  mind  of  the  actor 
because  it  is  assumed  that  there  was  no  mistake  of  fact,  bnt  in 
the  external  conditions  which  surrounded  the  actor  when  the 
act  was  performed.  Such  necessity  is  of  two  kinds:  Actual  and 
Legal.  Lcf/al  ncressitji  grows  out  of  tlie  ()l)ligation  to  discharge 
some  legal  duty,  like  that  of  a  shcTiif  to  exet'ute  a  death-warrant, 
or  of  an  officer  to  ca[iture  even  if  lie  tht-rtby  kills  an  esca])ing 
felon.  Artiinl  ncrcftsitji  arises  from  some  emergency  in  which 
the  actor,  without  his  own  fault,  has  been  placed  by  the  party 


534  ELEMENTARY   LAW  §  470 

against  whose  person  or  property  the  criminal  act  has  been 
committed.  One  who  takes  the  Hfe  of  an  assailant  in  true  self- 
defence,  or  who  destroys  a  nuisance  against  his  health  when 
it  cannot  be  otherwise  abated,  acts  through  such  necessity. 
When  this  defence  is  urged  it  is  admitted  that  the  criminal  act 
has  been  completely  performed,  and  that  the  accused  possessed 
the  mental  and  moral  capacity  to  render  him  responsible  for  its 
commission,  and  throws  upon  hlin  the  burden  of  proving  that, 
either  in  the  discharge  of  his  legal  duty,  or  in  the  proper  protec- 
tion of  his  legal  rights,  its  perpetration  was  inevitable. 

Rem.  This  doctrine  of  necessity  docs  not  extend  so  far  as  to 
permit  one  innocent  person  to  shift  his  burdens  upon  the  shoul- 
ders of  another  who  is  equally  innocent.  Two  shipwrecked 
sailors,  clinging  to  a  plank  of  insufficient  buoyancy  to  sustain 
them  both  at  once,  have  equal  rights,  and  neither  can  push  off  the 
other  to  be  drowned  without  incurring  the  guilt  of  murder.  Nor 
can  a  man  assaulted  with  a  deadly  weapon  use  a  third  person  as 
a  shield,  and  compel  him  to  receive  the  mtended  wound,  without 
himself  becoming  a  participator  in  the  homicide.  Such  is  the 
doctrine  of  the  Common  Law.  A  contrary  rule  prevails  in  certain 
other  systems  which  recognize  the  right  of  one  innocent  person 
to  protect  himself,  in  extreme  emergencies,  even  at  the  sacrifice 
of  others  who  are  also  innocent. 

Read:  4  Bl.  Com.,  pp.  27,  28,  30-32,  183-188-; 
Rob.  Am.  Jur.,  §§  44,  45; 
Clark,  Elementary  Law,  §  89; 
Desty,  Criminal  Law,  §§  31-31  /; 
May,  Law  of  Crimes,  §§  58-68; 

Clark  and  Marshall,  Criminal  Law,  §§  76,  77,  80-82,  84; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §§  38,  41; 
Kenney,  Criminal  Law,  pp.  68-71; 
1  Russell  on  Crimes,  pp.  145-160; 
1  Bishop,  Criminal  Law,  §§  346-355,  836-877; 
Wharton,  Criminal  Law,  §§  95-103,  484-547; 
McClain,  Criminal  Law,  §§  136-144,  301-316. 


§  470.     Of  the  Criminal  Intent:  Compiilsion. 

Compulsio7i  is  that  condition  of  the  actor  at  the  time  of  the 
act  in  which,  -although  his  action  is  intelligent  and  may  be  de- 
liberate, his  will  is  in  subjection  to  some  external  will  and, 
therefore,  does  not  freely  concur  in  its  performance.  Com- 
pulsion may  be  either  Actual  or  Presumed.    Actual  compulsion 


§  471  NATURE  OF  CRIMES  535 

is  the  illegal  exercise  of  force,  threats,  privation,  imprisonment, 
or  other  ill  treatment  by  some  third  party,  for  the  purpose  of 
compelling  the  commission  of  the  act.  Presumed  compulsion 
is  that  which  the  law  implies  from  the  relation  of  the  parties,  — 
as  where  a  wife,  by  the  command  and  in  the  presence  of  her 
husband,  commits  a  criminal  act  of  lower  grade  than  treason, 
robbery,  or  murder. 

Rem..  Compulsion  may  be  of  different  degrees,  —  from  that 
wherein  the  actor  becomes  the  mere  passive  tool  of  another  domi- 
nating personality,  to  that  which  just  so  far  influences  his  con- 
duct as  to  prevent  him  from  the  exercise  of  complete  self-control. 
Not  every  degree  of  compulsion  is  sufficient  to  rebut  the  legal  pre- 
sumption of  the  criminal  intent.  The  character  and  consequences 
of  the  criminal  act,  the  natural  fortitude  of  the  actor,  and  the 
forces  brought  to  bear  upon  him  to  compel  him  to  commit  the 
act  are  all  to  be  considered ;  and  in  the  light  of  these  three  fac- 
tors it  must  be  determined  whether,  in  reason  and  justice,  he 
could  have  been  expected  to  resist  the  compulsion  and  refrain 
from  the  performance  of  the  act.  The  more  enormous  the  crime 
the  higher  is  the  demand  which  the  law  makes  on  the  self-restraint 
of  the  actor.  Thus,  to  excuse  an  act  of  treason  nothing  but  the 
well-grounded  fear  of  immediate  death  suffices:  to  palliate  a 
theft  the  dread  of  bodily  harm  may  be  accepted.  This  defence 
has  no  relation  to  that  of  necessity,  but  is  in  many  cases  closely 
allied  to  those  of  insanity  and  mistake  of  fact. 

Read:  4  Bl.  Com.,  pp.  28-30; 
Clark,  Elementary  Law,  §  89; 
Hawley,  Criminal  Law,  pp.  16-20; 
Desty,  Criminal  Law,  §§  16-17  b,  32-32  b; 
May,  Law  of  Crimes,  §  37 ; 

Clark  and  Marshall,  Criminal  Law,  §§  78,  83,  85-87; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §§  39,  40; 
Kenney,  Criminal  Law,  pp.  64-68; 
Archbold,  Criminal  Procedure,  pp.  39-44,  52-54; 
1  Bishop,  Criminal  Law,  §§  356-366; 
Wharton,  Criminal  Law,  §§  75-83,  94,  94  a; 
McClain,  Criminal  Law,  §§  145-148. 


§  471.     Of  the  Specific  Intent. 

When  the  criminal  art,  as  defined  by  law,  is  partly  physical 
and  partly  mental,  the  mental  part  of  the  act  is  technically  known 
as  the  "specific  intent."  I'he  specific  intent  has  no  resemblance 
to  the  criminal  intent,  except  that  both  are  mental  conditions 


536  ELEMENTARY   LAW  §  471 

The  criminal  intent  is  not  an  actual  but  a  presumed  intent,  con- 
current with  but  not  contained  within  the  criminal  act.  The  spe- 
cific intent  is  an  actual  purpose  or  design  existing  in  the  mind 
of  the  actor,  and  is  an  essential  element  of  the  criminal  act,  which 
is  never  presumed  as  matter  of  law,  but  must  be  proved  as 
matter  of  fact  equally  with  the  physical  portion  of  the  criminal 
act.  Examples  of  crimes  involving  a  specific  intent  are  numer- 
ous. Such  are  forgery,  whose  criminality  depends  on  the  in- 
tent to  defraud  with  which  the  fictitious  document  was  made; 
burglary,  which  differs  from  a  simple  trespass  in  the  felonious 
intent  with  which  the  breaking  and  entering  are  performed ; 
assaults  with  intent  to  kill  or  rob  or  ravish,  and  many  others. 
In  proving  this  intent  two  facts  must  be  established :  (1)  The 
mental  capacity  of  the  accused  to  form  that  particular  intent ; 
(2)  Its  actual  formation,  and  concurrence  with  the  physical 
portion  of  the  act.  The  capacity  of  the  accused  to  form  the 
intent  is  presumed  until  the  contrary  appears;  but  may  be  dis- 
proved by  any  evidence  which  indicates  that  at  the  time  of  the 
commission  of  the  physical  act  his  mind,  from  any  cause  what- 
ever, was  in  such  a  condition  that  he  could  not  have  voluntarily 
conducted  those  intellectual  operations  which  enter  into  the 
formation  of  that  particular  specific  intent.  This  is  by  no 
means  the  same  question  as  that  of  sanity,  and  responsibility 
for  criminal  acts.  A  person  may  be  old  enough  and  sane  enough 
to  be  accountable  for  his  external  conduct,  and  yet  incapable 
of  so  estimating  ends,  and  selecting  means  for  their  accomplish- 
ment, as  to  form  a  specific  design  to  defraud  or  to  commit  a 
particular  felony.  In  reference  to  proof  of  the  formation  of  the 
specific  intent,  in  cases  where  capacity  to  form  it  is  not  denied 
or  successfully  disputed,  the  ordinary  rules  of  evidence  prevail; 
and  the  existence  or  non-existence  of  the  intent  must  be  inferred 
from  circumstances,  such  as  the  r.esults  accomplished  by  the 
act,  the  instruments  employed  and  preparations  jnade,  the  decla- 
rations of  the  accused  concerning  his  act,  and  his  use  on  other 
occasions  of  the  same  means  for  the  attainment  of  a  similar  end. 
A  specific  intent  to  achieve  a  premeditated  result  by  a  particular 
act  may  exist  in  the  mind  of  the  accused,  though,  for  reasons  not 
disclosed  to  him,  it  may  be  certain  that  the  result  can  never 
follow  from  the  act;   and  thus  a  person  may  commit  an  assault 


§  472  NATURE  OF  CRLMES  537 

with  intent  to  rob,  although  the  victim  may  not  have  in  his  pos- 
session any  property  which  is  subject  to  theft.  But  no  sane  person 
can  intend  a  consequence  which  is  in  itself  and  is  known  by 
him  to  be  inherently  impossible. 

Rem.  Upon  the  doctrine  of  specific  intent  the  attitude  of  the 
law  toward  drunkenness,  as  an  excuse  for  crime,  is  especially 
important.  Pubhc  policy  forbids  that  drunkards,  unless  per- 
manently insane,  should  escape  from  liability  for  their  criminal 
acts  on  account  of  their  voluntary  intoxication ;  and  when  their 
criminal  acts  are  proven  their  criminal  intent  is  presumed,  and 
they  are  punished  as  if  their  acts  were  voluntary  and  intelligent. 
But  when  the  (|uestion  of  specific  intent  arises  the  actual  condition 
of  the  accused  is  open  to  investigation,  and  if  he  were  too  drunk, 
at  the  time  he  committed  the  physical  action,  to  put  together  the 
factors  of  the  intellectual  problem  and  correlate  them  in  a  defi- 
nite design  and  purpose,  the  mental  portion  of  the  criminal  act  is 
wanting,  and  of  that  particular  crime  at  least  he  is  not  guilty. 
Thus  drunkenness  may  sometimes  be  urged  successfully  in  cases 
of  theft  on  the  ground  that  the  accused  could  not  have  formed 
the  necessary  intent  to  steal ;  or  in  cases  of  alleged  killing  with 
malice  aforethought  where  the  evidence  shows  that  the  homicidal 
act  was  committed  when  the  assailant  was  too  drunk  to  enter- 
tain a  deliberate  and  premeditated  purpose  to  destroy  the  \ac- 
tim's  Ufe. 

Read:  Clark,  Elementary  Law,  §  89; 

Hawlcy,  Criminal  Law,  pp.  20-23,  36,  37; 

Desty,  Criminal  Law,  §§  27-27  c; 

May,  Law  of  Crimes,  §§  32-34,  47-47  6; 

Clark  and  Marsliall,  Criminal  Law,  §§  63-67,  107,  108; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §§  16-18; 

Kenney,  Criminal  Law,  pp.  54-57; 

Archbold,  Criminal  Procedure,  p.  30; 

1  Bishop,  Criminal  Law,  §§  408-416; 

McClaui,  Criminal  Law,  §§  122,  125,  126,  161,  162. 


SECTION  II 

OF  THE  DEGREES,   RELATIONS,   AND  PUNISHMENT  OF  CRIMES 

§  472.     Of  the  Degrees  of  Crime. 

The  same  physical  action  may  be  an  ingredinii  of  srrrral 
different  crimes  according  to  the  consecjuences  it  proiluccs,  or 
the  intent  with  which  it  is  committed,  or  the  circumstances 
which  surround  it,  or  the  various  systems  of  law  by  which  it 


538  ELEMENTARY  LAW  §473 

may  have  been  prohibited.  Thus  an  unlawful  blow  struck  at 
another  may  fail  to  reach  him,  and  be  a  mere  assault ;  or  it  may 
reach  him  and  cause  him  a  slight  injury,  and  therefore  be  a 
battery;  or  it  may  produce  a  serious  lesion  and  amount  to 
wounding;  or  it  may  destroy  a  limb,  and  be  a  mayhem;  or  it 
may  take  his  life  and  be  a  homicide ;  in  each  of  which  cases  the 
act  of  the  assailant  is  the  same  but  is  differentiated  as  to  its 
degree  of  criminality  by  the  comparative  importance  of  its  con- 
sequences. Again,  an  assault  with  intent  to  beat  is  one  crime; 
with  intent  to  maim,  another  crime ;  with  intent  to  kill,  another 
crime;  and  with  intent  to  murder,  still  another  crime.  Again, 
an  assault  upon  a  person  in  a  private  room,  or  in  a  place  remote 
from  public  view,  is  simply  an  assault;  if  in  a  public  place,  it 
is  a  breach  of  the  peace ;  if  in  the  presence  of  a  court,  or  legis- 
lative body  wliile  in  session,  it  is  a  contempt.  Again,  to  mail  an 
obscene  libel  to  another  is  a  criminal  nuisance  because  of  its 
obscenity;  it  is  also  a  disturbance  of  the  peace  because  it  is  a 
libel ;  it  is  also  a  breach  of  the  postal  regulations  of  the  United 
States;  the  first  two  offences  being  crimes  under  the  common 
law  or  statutes  of  the  individual  State,  the  last  a  crime  under  the 
Acts  of  Congress. 

Rem.  Besides  this  differentiation  of  degrees  of  crime  based  on 
their  nature,  circumstances,  and  results,  further  degrees  are  some- 
times established  by  local  statutes;  in  order  to  affix  more  defi- 
nitely and  justly  their  distinctive  penalties.  Thus  murder  is 
frequently  divided  into  two  degrees,  —  one  characterized  by  pre- 
meditation and  punished  with  death;  the  other  a  true  murder, 
intentional  and  malicious  but  without  premeditation,  and  pun- 
ishable by  imprisonment.  These  distinctions  are  in  some  stat- 
utes carried  to  a  great  minuteness,  in  striking  contrast  to  the 
general  definitions  of  tlie  common  law. 

Read:  Hawley,  Criminal  Law,  pp.  141,  142. 

§  473.     Of  the  Merger  of  Crimes. 

In  cases  where  the  degree  of  the  criminal  act  is  measured  by 
its  consequences  all  lesser  degrees  merge  in  the  greater.  Thus 
a  blow  causing  death  is  a  homicide  only,  and  is  no  longer  re- 
garded by  the  law  as  an  assault,  a  battery,  a  wounding,  or  a 
mayhem,  all  of  which  in  its  true  character  it  might  also  be.     [n 


§  473  NATURE   OF  CRIMES  539 

like  manner  an  attempt  merges  in  the  completed  crime,  and  a 
conspiracy  in  the  overt  act  of  the  conspirators.  In  cases  where 
the  degree  depends  on  the  specific  intent,  if  the  different  intents 
prompting  the  action  were  so  related  to  each  other  that  the  more 
malignant  included  the  less,  as  in  the  intents  to  beat,  maim,  kill, 
and  murder,  the  worst  intent  expressed  by  the  act  absorbs  the 
others,  and  the  act  is  a  crime  characterized  by  that  intent  alone. 
If,  however,  the  specific  intents  were  in  their  nature  independent 
of  one  another,  as  where  an  assault  is  made  both  with  intent  to 
rob  and  an  intent  to  ravish,  no  such  merger  takes  place,  each 
being  in  the  law  an  attempt  to  commit  an  entirely  different 
crime.  In  cases  where  the  degree  of  crime  depends  upon  the 
circumstances  which  surround  it,  whether  the  lower  degree 
merges  in  the  higher  is  determined  by  the  same  test  as  in  the 
foregoing  cases.  I'hus  if  the  higher  and  the  lower  crimes  are  of 
the  same  legal  character,  and  violate  the  same  private  and  public 
rights,  the  less  will  be  lost  in  the  greater  as  a  common  assault  is 
merged  in  an  aggravated  assault  or  in  a  breach  of  the  public 
peace.  But  if  the  crimes  differ  in  their  legal  character  or  in  the 
right  which  they  invade,  as  a  contempt  of  court  differs  from  an 
attack  ujwn  the  person,  there  is  no  merger  and  the  offences  are 
separately  punishable.  In  cases  where  the  same  criminal  act 
transgresses  two  or  more  distinct  rules  of  law  relating  to  inde- 
pendent subjects,  or  is  forbidden  by  two  tlifferent  sovereignties, 
there  is  no  merger,  however  similar  in  consequences,  circum- 
stances, or  intent  the  crimes  may  be. 

Rem.  This  doctrine  of  merger  controls  both  prosecutions  and 
defences.  Where  the  same  criminal  act  constitutes  several  differ- 
ent degrees  of  crime,  the  lesser  of  which  under  the  foregoing 
rules  would  merge  in  the  greater,  the  State  in  prosecuting  may 
elect  the  degree  on  which  it  will  base  its  prosecution,  in  view  of  the 
nature  and  availability  of  the  evidence,  the  general  justice  of  the 
case,  or  any  other  matter  of  pul)lic  policy;  or  it  may  jirosecute 
for  all  degrees  at  once,  leaving  it  for  the  court  and  jury  to  deter- 
mine which  charge  the  law  and  evidence  sustain.  As  a  general 
rule  a  prosecution  for  a  greater  degree  alone  waives  the  right  to 
subsequently  commence  proceedings  for  a  lower,  whether  on  the 
formei  prosecution  the  accuse^l  has  been  convicted  or  actiuitted; 
but  a  contrary  rule  has  sometimes  been  asserted.  Where  such  a 
waiver  is  recognized  by  local  law,  merger  would  be  a  good  de- 
fence on  any  second  ))rose(ution  for  the  crime,  whatever  might 


540  ELEMENTARY  LAW  §  474 

have  been  the  degree  on  which  the  former  proceedings  were 
based.  As  modern  decisions  permit  a  jury,  on  prosecutions  for  a 
higher  degree  of  crime,  to  find  the  accused  guiUy  of  any  lesser 
degree,  it  has  become  the  custom  to  charge  him  with  the  highest 
degree  alone  and  accept  the  verdict  of  the  jury  as  a  final  decision 
of  the  case,  since  a  verdict  of  guilty  of  any  one  degree  operates 
as  an  acquittal  of  all  the  rest.  Under  thi^  custom  questions  of 
merger  less  frequently  arise. 

Read;  Hawley,  Criminal  La\v,  p.  115; 
Clark  and  Marshall,  Criminal  Law,  §  6; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §§  H,  12; 
1  Bishop,  Criminal  Law,  §§  263  a-278,  786-815  a; 
Wharton,  Criminal  Law,  §§  27,  27  a; 
McClain,  Criminal  Law,  §§  10,  11,  22. 


§  474.     Of  the  Victims  of  Crime. 

'J'he  criminal  act  may  be  directed  against  the  State  or  its  prop- 
erty, or  against  the  persons  or  the  property  of  individuals.  The 
legal  relations  between  these  victims  of  the  criminal  act  and  the 
act  itself  are  fixed  by  law,  and  cannot  be  varied  by  any  conduct 
or  agreement  of  the  parties.  Where  the  State  is  the  injured  party 
no  laches  or  neglect  of  its  officers,  in  enforcing  the  laws,  can 
justify  or  excuse  the  act  by  which  they  have  been  violated.  When 
the  object  of  the  act  is  property,  either  public  or  private,  its 
character,  quantity,  and  value  do  not  diminish  or  increase  the 
guilt  of  one  who  steals  or  injures  or  destroys  it,  unless  the  law 
has  thus  discriminated  for  it  or  against  it.  The  consent  of  the 
person  against  whom  the  criminal  act  has  been  committed,  or 
the  enticement  of  a  decoy,  does  not  relieve  the  offender  from  re- 
sponsibility ;  nor  does  the  guilt  or  negligence  of  the  victim  excuse 
the  actor  unless  they  led  him  into  a  mistake  of  fact,  or  created 
a  necessity  sufficient  to  rebut  the  presumption  of  criminal  intent. 
After  a  crime  has  been  committed  it  cannot  be  condoned  by  any 
private  authority;  but  remains  against  the  perpetrator  until  he 
is  judicially  acquitted,  or  is  convicted  and  punished,  or  is  par- 
doned by  the  State,  or  the  right  of  the  State  to  prosecute  him  for 
the  offence  has  been  formally  waived,  or  has  been  barred  by  the 
Statute  of  Limitations. 

Rem.  Although  no  power  resides  in  any  person  to  consent  to 
or  condone  public  offences,  except  the  legally  appointed  pardon- 


§  475  NATURE  OF  CRIMES  541 

ing  authorities,  yet  prosecuting  officers  and  judges  necessarily  ex- 
ercise a  wide  discretion  in  the  achiiinistration  of  criminal  law. 
The  State,  according  to  its  nature,  is  controlled  not  by  notions  of 
abstract  right  and  justice  but  by  the  immediate  practical  interest 
of  the  public;  and  as  it  makes  and  abrogates  laws  in  view  of  the 
current  jiublic  good,  so  it  enforces  or  ignores  them  as  the  public 
good  re((uires.  A  proseniting  officer  may  thus  refrain  from  pur- 
suing a  well-known  criminal  for  an  indisputable  offence,  if  under 
all  the  circumstances  it  may  seem  unwise  to  prosecute  the  crime. 
In  minor  cases  this  is  often  done  at  the  request  of  the  injured  party, 
(jr  when  he  manifests  so  little  interest  in  the  case  as  to  lail  to 
pursue  the  offender.  Judges,  after  the  accused  has  been  con- 
victed, sometimes  decline  to  pass  a  sentence,  and  release  the 
prisoner  on  his  own  recognizance,  for  similar  reasons.  The  fact 
that  this  discretion  may  occasionally  be  abused  is  no  ground 
for  withholding  it ;  since  the  public  welfare  demands  that  it  exist 
somewhere  and  no  better  lodgment  for  it  than  the  present  one 
can  be  devised. 

Read:  Clark,  Elementary  Law,  §  104; 
Hawley,  Criniiiial  Law,  pp.  40-43; 
Desty,  Criminal  Law,  §§  33-33  b; 
May,  Law  of  Crimes,  §§  21-25; 
Clark  and  Marshall,  Criminal  Law,  §§  150-162; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §  2; 
1  Bishop,  Criminal  Law,  §§  25.5-263; 
Wharton,  Criminal  Law,  §§  136-150. 


§  475.     Of  the  Punishment  of  Crime. 

The  principal  methods  by  which  the  State  can  jninish  persons 
convicted  of  crime  are  death,  bodily  torture,  imprisonment,  and 
forfeiture  of  property.  In  our  modern  States  bodily  torture, 
though  once  common,  is  rarely  inflicted;  but  death,  imprison- 
ment, and  forfeiture  are  still  retained.  The  penalti/  of  death  was 
formerly  employed  with  various  [)aiiiful  aggravations  to  meet 
different  degrees  of  crime;  and  to  imprisonment  conditions  of 
solitude,  hard  labor,  and  other  privations  are  annexed  for  the 
same  purpose.  Forfeiture  has  l)een  enforced,  in  reference  to 
some  crimes,  against  the  entire  estate  of  the  offender;  in  refer- 
ence to  other  crimes  it  lia,s  been  restricted  to  certain  species  of 
property  or  to  a  jiecuniarv  fine.  In  this  country  the  whole  matter, 
within  the  limitations  fixed  by  the  Federal  and  State  Constitu- 
tions, is  regulated  by  local  statutes. 


542  ELEMENTARY  LAW  §  476 

Rem.  As  the  sole  power  of  the  State  to  enforce  its  laws  re- 
sides in  its  ability  to  inflict  penalties  for  their  disobedience  it  might 
be  expected  that,  after  sixty  centuries  of  experience,  human  wis- 
dom would  have  been  able  to  devise  some  effective  system  of 
punishments  for  crime.  But  the  problem  appears  now  as  far  from 
settlement  as  ever.  The  question  is  not  one  of  maudlin  senti- 
ment, or  of  racial  prejudice,  or  of  insane  altruism,  but  of  prac- 
tical public  policy;  and  as  the  State  has  the  unchallenged  right 
to  exterminate  criminals  and  criminal  classes  if  necessary  to  its 
own  protection,  and  possesses  a  physical  power  equal  to  its  right, 
there  is  no  solid  reason,  in  the  nature  of  things,  why  the  problem 
should  not  long  since  have  been  solved.  But  until  the  na- 
tions realize  that  the  State  punishes  past  crimes  not  in  order  to  vin- 
dicate abstract  justice,  nor  to  reform  an  already  guilty  criminal, 
but  only  to  prevent  future  crimes ;  and  that  future  crimes  can  be 
prevented  only  by  destroying  the  inducement  and  the  capacity  to 
perpetrate  them;  no  somid  and  practically  useful  conclusion  is 
likfily  to  be  reached.  The  principal  incentives  to  crime  are,  and 
always  nave  been,  some  form  of  avarice  or  lust.  When  crimes 
born  of  avarice  are  punished  by  compelling  the  criminal  to  make 
full  restitution,  either  in  value  or  in  penal  servitude,  so  that  under 
an  efficient  administration  of  the  laws  it  would  become  impossible 
for  the  criminal  to  profit  by  his  crime ;  and  when  crimes  of  lust 
are  punished  by  inflicting  bodily  pain  exceeding  the  anticipated 
pleasure,  and  in  grievous  cases  by  surgically  depriving  the  con- 
victed criminal  of  the  capacity  to  repeat  the  crime, — the  power  of 
the  State  to  prevent  crime  will  become  manifest,  and  the  present 
cumbrous,  uncertain,  expensive,  and  almost  fruitless  system  will 
disappear. 

Read:  4  Bl.  Com.,  pp.  7-19; 

Clark,  Elementary  Law,  §  93; 

Desty,  Criminal  Law,  §§  46-55  b; 

Kenney,  Criminal  Law,  pp.  24-32,  130-132; 

1  Bishop,  Criminal  Law,  §§  927-977; 

Wharton,  Criminal  Law,  §§  1-13; 

Beccaria,  Crimes  and  Punishments; 

1  Woolsey,  Political  Science,  pp.  324-381. 


§  476.     Of  the  Classification     of     Crimes:      Treason;      Felony; 
Misdemeanor. 

In  England,  in  ancient  times,  the  relative  severity  of  penalties 
was  estimated  in  the  following  order;  (1)  Death  in  an  aggravated 
form,  with  the  forfeiture  of  the  entire  estate;  (2)  Forfeiture  of 
lands  or  goods,  or  both,  with  or  without  death  according  to  the 
enormity  of  the  offence ;   (3)  Forfeiture  of  a  portion  of  the  goods 


§  476  NATURE  OF  CRIMES  543 

ot  the  oflFender  or  his  imprisonment,  The  first  was  inflicted 
only  for  the  highest  of  all  crimes,  —  treason  against  the  State. 
The  second  was  applied  in  a  great  variety  of  the  more  heinous 
offences  which,  because  of  the  forfeiture  it  contained,  were  called 
felonies.  The  third  was  imposed  for  minor  offences  called  mis- 
demeanors. This  gradation  of  penalties  naturally  led  to  the 
classification  of  crimes  on  the  same  basis,  and  became  the  ground 
of  distinctions  of  great  legal  importance.  At  the  time  it  origi- 
nated the  entire  forfeiture  of  property  was  regarded  as  a  penalty 
so  severe,  and  so  far  reaching  in  its  effects,  as  to  be  even  worse 
than  death,  and  to  demand  the  greatest  caution  from  the  courts 
in  its  infliction.  Hence,  the  prosecution  of  crimes  for  which  it 
might  be  imposed  was  hedged  about  with  numerous  technicalities, 
unknown  to  the  proceedings  for  lesser  crimes.  These  technicali- 
ties were  relaxed  to  some  extent  in  accusations  for  treason,  on 
account  of  its  enormity  and  the  necessity  of  exterminating  the 
direct  domestic  enemies  of  the  State;  but  in  regard  to  felonies 
they  were  carried  to  an  extreme  degree,  especially  in  reference 
to  the  comparative  responsibility  of  the  various  participants  in 
the  criminal  act,  the  methods  of  arrest,  the  form  of  complaint  or 
indictment,  the  rights  of  the  accused  during  their  trial,  and  the 
merger  of  offences.  In  later  times,  though  forfeiture  has  come 
to  be  regarded  as  an  evil  of  less  consequence,  yet  these  peculiar 
methods  of  procedure  in  reference  to  felonies  to  some  extent 
survive,  and  this  renders  the  grouping  of  crimes  into  these  three 
classes  a  permanent  feature  of  our  law. 

Rem.  Although  the  former  classification  of  crimes  into  trea- 
son, felonies,  and  misdemeanors  still  remains,  the  individual  crimes 
which  constitute  the  groups  are  not  the  same.  Many  ancient  felo- 
nies have  been  reduced  by  law  to  misdemeanors,  and  many  mis- 
demeanors elevated  into  felonies.  In  some  States,  all  offences 
are  misdemeanors  except  treason,  unless  expressly  declared 
felonies  by  statute.  In  other  States,  all  crimes  punishable  by 
death,  or  by  imprisonment  for  life,  or  by  imprisonment  in  the 
States-prison,  are  regarded  as  felonies.  Other  States  recognize 
the  more  important  felonies  of  the  English  law,  such  as  murder, 
manslaught(>r,  arson,  rape,  robbery,  burglary,  and  theft,  as  felo- 
nies by  their  unwritten  law;  and  add  to  the  group  by  their 
written  law  such  other  oifences  as  seem  to  require  the  same 
penalties  or  modes  of  prosecution. 


544  ELEMENTARY    LAW  §  477 

Read:  4  Bl.  Com.,  pp.  74,  94-102; 
Walker,  American  Law,  §  257; 
Hawley,  Criminal  Law,  pp.  96-99; 
Desty,  Criminal  Law,  §§  2-4  6; 
May,  Law  of  Crimes,  §§  9-11; 
Clark  and  Marshall,  Criminal  Law,  §  3; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §§  7,  9,  10; 
Kenney,  Criminal  Law,  pp.  84-92; 
1  Russell  on  Crimes,  pp.  192-195; 
Archbold,  Criminal  Procedure,  pp.  1-5; 
1  Bishop,  Criminal  Law,  §§  607-623; 
Wharton,  Criminal  Law.  §§  21-24; 
McClain,  Criminal  Law,  §§  17-20. 

§  477.     Of  Common  Law  Crimes  and  Statutory  Crimes. 

Crimes  may  be  defined  and  prohibited  either  by  the  unwritten 
or  the  written  law.  The  prohibitions  and  definitions  of  the  un- 
written law  are  found  in  the  decisions  of  the  courts,  and  in 
the  treatises  of  recognized  authority ;  those  of  the  written  law  in 
constitutions,  treaties,  and  statutes.  Grave  crimes  are  usually 
forbidden  by  the  unwritten  law  as  individual  offences;  those 
of  less  importance  as  members  of  a  class  of  wrongs  which,  as 
a  class,  have  been  judicially  determined  to  be  prejudicial  to  the 
State.  The  comprehensiveness  of  the  unwritten  law  in  refer- 
ence to  crime  depends  upon  this  latter  mode  of  prohibition.  By 
deciding  that  breaches  of  the  peace,  obstructions  of  public 
justice,  injuries  to  public  health,  and  other  general  groups  of 
acts  are  crimes  because  of  their  evil  influence  upon  the  welfare 
of  the  State,  it  provides  a  method  for  the  punishment  of  every 
act  producing  these  effects,  without  requiring  a  new  definition 
and  command  for  every  new  wrong  of  these  classes  which  the 
ingenuity  and  malice  of  offenders  might  devise.  The  written 
law  explains,  applies,  and  extends  the  definitions  and  prohibi- 
tions of  the  unwritten  law ;  and  adds  to  its  provisions  such  new 
commands  as  varying  social  conditions  may  require.  In  some 
of  our  States  the  written  law  has  occupied  the  entire  field  of 
criminal  jurisdiction,  and  the  unwritten  law  creates  no  crinjes. 
In  other  States  it  serves  only  to  interpret  the  language  which  it 
has  furnished  to  the  written  law,  or  to  supply  some  unforeseen 
emergency  for  which  the  written  law  is  unprepared.  In  the 
administration  of  the  government  of  the  United  States,  within 
the  areas  of  the  several  States,  all  its  criminal  enactments  are 


§  478  PERPETRATORS  OF  CRIME  545 

embodied  in  its  written  law,  though  in  the  territories  over  which 
it  possesses  an  exclusive  sovereignty  its  own  unwritten  law  also 
prevails.  How  far  the  Federal  legislation  may  define  and  pro- 
hibit criminal  actions  and  omissions  within  the  limits  of  the 
different  States  is  settled  by  the  Constitution,  and  by  the  nature 
of  the  United  States  as  the  supreme  sovereign  charged  with  the 
conduct  of  all  national  affairs.  Of  those  over  which  the  Federal 
jurisdiction  is  not  necessarily  exclusive  the  individual  States  take 
cognizance  in  their  written  and  unwritten  laws. 

Rem:  All  written  criminal  laws  are  subject  to  two  constitu- 
tional restrictions:  (1)  That  no  cruel  and  unusual  punishments 
shall  be  imposed  ;  (2)  That  no  ex  post  facto  laws  shall  be  enacted. 
A  cruel  and  unusual  punishment  is  one  as  yet  unknown  to  the  law, 
and  whose  method  or  severity  is  shocking  to  the  moral  sense  of 
the  general  public.  An  ex  post  facto  law  is  a  law  prescribed  after 
the  commission  of  the  act  in  question,  either  changing  it  from  an 
innocent  act  into  a  crime;  or  aggravating  its  degree;  or  in- 
creasing its  penalty ;  or  depriving  its  perpetrator  of  some  power 
or  privilege  which  might  have  been  available  to  him  under  the 
former  law  if  he  had  then  been  prosecuted  for  his  crime.  A  law, 
though  ex  post  facto  as  to  past  transactions,  is  valid  as  to  those 
occurring  after  its  enactment. 

Read:  Hawley,  Criminal  Law,  pp.  44-66; 
May,  Law  of  Crimes,  §§  2-4; 
Clark  and  Marshall,  Criminal  Law,  §§  32-53; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §§  4-6; 
1  Bishop,  Criminal  Law,  §§  279-284; 
Wharton,  Criminal  Law,  §§  25,  26; 
McClain,  Criminal  Law,  §§  12-15,  23-73,  74-80. 


SECTION  III 

OF   THE    PERPETRATORS   OF   CRIME 

§  478.     Of  Principals  in  the  First  Degree. 

Persons  engaging  in  a  criminal  enterj)rise  become  related  to 
the  criminal  act  eitiicr  as  Principals  or  as  Accessaries.  A  princi- 
pal is  one  who  participates  in  (lie  performance  of  the  criminal 
act.  Princij)als  are  of  two  degrees.  A  principal  in  the  first 
degree  is  he  who  commits  the  act,  either  directly  by  himself  or 
through  an  innocent  agent.  If  several  acts  are  necessary  to 
complete  the  crime,  and  e;icii  is  performed  by  a  separate  person 

3.5 


546  ELEMENTARY  LAW  §  479 

in   pursuance  of  the  common   purpose,   all   these  persons   are 
principals  in  the  first  degree. 

Rem.  A  principal  in  the  first  degree  need  not  be  present  in  the 
place  where  the  criminal  act  is  consummated ;  nor,  if  he  employs 
an  irresponsible  agent,  in  the  place  where  the  act  is  committed, 
or  its  consequences  are  produced.  Thus  to  send  by  mail  to  a  dis- 
tant State  a  poison,  which  is  taken  by  and  causes  the  death  of  the 
recipient,  is  a  direct  act  of  killing  in  the  State  where  the  death 
occurs.  To  despatch  an  infant  or  insane  messenger  into  a  for- 
eign country,  there  to  perpetrate  a  felony,  makes  the  felony  when 
perpetrated  the  immediate  criminal  act  of  him  by  whose  com- 
mand it  was  performed. 

Read:  4  Bl.  Com.,  pp.  34,  35; 
Walker,  American  Law,  §  255; 
Clark,  Elementary  Law,  §  92; 
Hawley,  Criminal  Law,  pp.  80,  81 ; 
Desty,  Criminal  Law,  §  36; 
May,  Law  of  Crimes,  §  69 ; 

Clark  and  Marshall,  Criminal  Law,  §§  163-169,  186-196; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §§  43-46,  52,  53; 
Kenney,  Criminal  Law,  pp.  77-79 ; 
1  Russell  on  Crimes,  p.  161; 
Archbold,  Criminal  Procedure,  pp.  55-58; 
Wharton,  Criminal  Law,  §§  205-210; 
McClain,  Criminal  Law,  §§  199-204. 


§  479.     Of  Principals  in  the  Second  Degree. 

A  principal  in  the  second  degree  is  one  who  does  not  himself 
commit  the  act,  but  who,  in  pursuance  of  a  common  purpose 
with  the  principal  in  the  first  degree,  is  actually  or  constructively 
present  when  it  is  committed,  and  then  and  there  aids  and  abets 
the  principal  in  the  first  degree.  Any  assistance  or  readiness  to 
assist,  if  manifested  by  an  overt  act,  constitutes  an  aiding  and 
abetting.  A  person  is  actually  present  at  the  commission  of  a 
crime  when  he  is  at  the  place  where  the  crime  is  committed  at 
the  time  when  it  is  being  committed.  He  is  constructively  present 
when  he  is  so  situated,  with  reference  to  the  place  where  the 
crime  is  committed,  while  it  is  being  committed,  as  to  be  able, 
if  necessary,  to  assist  therein  by  giving  an  alarm  or  otherwise. 

Rem.  As  there  can  be  no  principal  in  the  second  degree  yaih- 
out  a  principal  in  the  first  degree  it  is  essential,  in  prosecuting 
the  former,  to  prove  the  guilt  of  the  latter.     Hence,  in  order  to 


§  480  PERPETRATORb   OF  CRIME  547 

avoid  the  possible  absurdity  of  first  convicting  the  principal  in  the 
second  degree,  and  afterwards  acquitting  the  princijial  in  the 
first  degree,  arose  the  rule  that  no  prosecution  should  be  insti- 
tuted against  the  principal  in  the  second  degree  until  after  the 
principal  in  the  first  degree  had  first  been  arrested,  prosecuted,  and 
convicted.  This  rule,  leading  to  the  escape  of  many  evidently 
guilty  principals  in  the  second  degree,  because  the  principal  in  the 
first  degree  had  fled  beyond  the  reach  of  process,  has  led  some 
States  to  abolish  the  distinction  altogether,  and  treat  the  prin- 
cipal in  the  second  degree  as  the  perpetrator  of  an  original  and 
separate  crime. 

Read:  Hawley,  Criminal  Law,  pp.  81,  82; 
Desty,  Criminal  Law,  §§  37-39; 
May,  Law  of  Crimes,  §  69 ; 
Clark  and  Marshall,  Criminal  Law,  §§  170-175; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §§  47,  50,  51; 
Kenncy,  Criminal  Law,  pp.  79,  80; 
1  RiLssell  on  Crimes,  pp.  161-169; 
Archbold,  Criminal  Procedure,  pp.  58-65; 
1  Bishop,  Criminal  Law,  §§  644-659; 
Wharton,  Criminal  Law,  §§  211-224; 
McClain,  Criminal  Law,  §§  193-198,  205,  206. 


§  480.     Of  Accessaries  before  the  Fact. 

An  accessary  is  one  who  does  not  participate  in  the  perform- 
ance of  the  criminal  act,  but  who  concurs  in  or  sanctions  it,  and 
either  in  some  way  contributes  to  its  commission  or  endeavors 
to  prevent  its  punishment.  Accessaries  are  either  Accessaries 
before  the  Fact,  or  Accessaries  after  the  Fact.  An  accessary 
before  the  fact  is  one  who  neither  commits  the  act  nor  aids  and 
abets  in  its  commission,  but  who  before  the  act  is  performed 
contributes  to  its  commission  by  procuring,  advising,  or  encour- 
aging the  princijial  to  perform  it.  An  accessary  bc^fore  the  fact 
may  or  may  not  be  the  original  contriver  of  the  crinic,  but  nuist 
at  the  time  when  he  contributes  to  the  crime  entertain  the 
purpose,  and  contemplate  the  consequences,  which  are  realized 
by  the  commission  of  the  criminal  act.  Encouragement  given 
and  withdrawn  in  time  to  enable  the  |)rincipal  to  refrain  from 
the  perpetration  of  the  act  tloes  not  contribute  to  its  performance; 
for  if  the  principal  then  proceeds  to  its  commission  he  is  alone 
res[)()nsiblc;  if  he  abandons  the  d(>sign  there  is  no  act  to  which 
the  instigator  could  have  been  accessary.    But  a  repentance  too 


548  ELEMENTARY  LAW  §  481 

late  to  be  effective  does  not  release  the  accessary  from  the  guilt 
incurred  by  his  original  intention  and  enticement  to  the  act. 

Rem.  The  distinction  between  principals  and  accessaries  is 
recognized  only  in  reference  to  felonies.  In  treason  all  the  parties 
entertain  the  treasonable  purpose  and  share  in  the  moral  and  po- 
litical guilt,  and  in  their  favor  the  law  makes  no  nice  distinctions 
but  treats  all  of  them  as  principals.  In  misdemeanors,  on  account 
of  their  general  insignificance,  the  law  does  not  consider  the  near- 
ness or  remoteness  of  the  actors  in  reference  to  the  act,  but  prose- 
cutes as  principals  all  whom  it  deems  it  expedient  to  punish. 

Read:  4  Bl.  Com.,  pp.  35-37; 

Hawley,  Criminal  Law,  pp.,  82-86; 

Desty,  Criminal  Law,  §§  40-43; 

May,  Law  of  Crimes,  §§  70,  71-76; 

Clark  and  Marshall,  Criminal  Law,  §§  176-180; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §  48;  ' 

Kenney,  Criminal  Law,  pp.  80-82; 

1  Russell  on  Crimes,  pp.  170-176; 

Archbold,  Criminal  Procedure,  pp.  65-73; 

1  Bishop,  Criminal  Law,  §§  660-689; 

Wharton,  Criminal  Law,  §§  225-240; 

McClain,  Criminal  Law,  §§  207,  208. 

§  481.     Of  Accessaries  after  the  Fact. 

An  accessary  after  the  fact  is  one  who  neither  participates  in 
the  commission  of  the  act,  nor  contributes  to  it  before  it  is  com- 
mitted, but  who  after  its  commission  unlawfully  aids  the  guilty 
actor  in  evading  punishment.  The  law  provides  a  method  in 
which  an  alleged  criminal  can  meet  and  defend  himself  against 
the  charge,  and  to  assist  him  in  making  this  defence  is  not  un- 
lawful. But  for  one  who  knows  his  guilt  to  aid  him  in  eluding 
arrest,  or  in  escaping  from  custody,  is  so  high  a  crime  that  even 
a  husband  or  a  parent  cannot  excuse  it  by  any  feeling  of  affection 
or  solicitude  for  the  accused ;  and  even  a  wife  can  justify  it  only 
on  the  ground  of  the  presumed  coercion  of  her  husband.  Mere 
acts  of  charity  not  conducing  to  the  obstruction  of  the  course 
of  justice,  such  as  feeding  a  criminal  in  prison  and  the  like,  are 
not  unlawful ;  nor  r'oes  assistance  to  a  fleeing  culprit  charge  his 
aider  with  a  share  in  his  offence,  unless  the  offence  is  then  com- 
pleted and  the  aider  knows  of  its  commission. 

Rem.  Accessaries,  whether  before  or  after  the  fact,  cannot 
usually  without  their  own  consent  be  tried  before  the  trial  and 


§  481  PERPETRATORS   OF  CRIME  549 

conviction  of  their  principals,  —  a  difficulty  which,  in  the  local 
laws  of  several  of  our  States,  is  avoided  by  treating  them  as  prin- 
cipals. Indeed,  the  universal  modern  tendency  is  to  ignore  this 
separation  of  the  criminal  actors  into  different  relations  to  the 
act,  once  so  important  a  protection  against  the  extreme  penal- 
ties of  felony;  and  as  in  treason  and  misdemeanors  to  regard 
them  as  of  equal  and  independent  guilt. 

Read:  4  Bl.  Com.,  pp.  37-39; 

Hawley,  Crimiiial  Law,  pp.  86-90; 

Desty,  Criminal  Law,  §§  44,  45; 

May,  Law  of  Crimes,  §  70 ; 

Clark  and  Marshall,  Criminal  Law,  §§  181-185; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §  49; 

Kenney,  Criminal  Law,  pp   82,  83; 

1  Russell  on  Crimes,  pp.  176-191; 

Arclibold,  Criminal  Procedure,  pp.  73-79; 

1  Bishop,  Criminal  Law,  §§  690-708; 

Wharton,  Criminal  Law,  §§  241-244; 

McClain,  Criminal  Law,  §§  209-218. 


550  ELEMENTARY  LAW  §  482 


CHAPTER   IT 

OF    PARTICULAR    CRIMES 

§  482.     Of  the  Glasses  of  Particular  Crimes. 

Particular  crimes  have  been  variously  arranged  in  classes, 
sometirnes  according  to  their  mode  of  punishment,  as  treason, 
felony,  and  misdemeanor;  sometimes  according  to  the  charac- 
ter of  the  criminal  act,  as  including  or  not  including  a  specific 
intent;  sometimes  according  to  their  consequences,  as  pri- 
marily affecting  private  individuals,  or  the  State,  or  the  public 
at  large.  Of  these  the  first  is  accidental  and  unstable,  since 
modes  of  punishment  are  subject  to  continual  change,  and  the 
same  crime  may  thus  at  one  time  be  a  felony  and  at  another 
time  a  misdemeanor.  The  second  rests  upon  essential  differ- 
ences in  the  crimes  themselves  as  they  have  been  defined  by 
law,  but  upon  no  broad  and  permanent  distinctions  in  the 
nature  of  things  which  the  law  is  not  at  liberty  to  disregard. 
The  third  alone  is  founded  on  the  intrinsic  and  invariable 
attributes  of  the  crimes  as  invasions  of  public  or  of  private 
rights,  and  is  commonly  adopted  by  modern  jurists,  who  divide 
crimes  into  four  classes:  (1)  Crimes  against  the  State;  (2) 
Crimes  against  the  Public  Welfare;  (3)  Crimes  against  the 
Persons  of  Individuals;  (4)  Crimes  against  the  Property  of 
Individuals. 

Rem.  In  this  classification  the  State  is  considered  in  its  cor- 
porate capacity  only,  as  a  political  body  legally  distinguishable 
from  the  public  or  people  of  whom  it  is  composed;  and  there- 
fore possessing  rights  and  susceptible  to  wrongs  which  the  public 
at  large  cannot  enjoy  or  sustain.  Thus  an  act  which  really  in- 
jures no  physical  person  either  public  or  private  may,  like  some 
forms  of  treason,  be  a  crime  of  the  highest  magnitude  against 
that  ideal  person,  the  State. 

Read:  May,  Law  of  Crimes,  §§  13-17; 

Clark  and  Marshall,  Criminal  Law,  §§  19-31; 
Kenney,  Criminal  Law,  pp.  93,  94; 
Archbold,  Criminal  Procedure,  pp.  5-8; 
1  Bishop,  Criminal  Law,  §§  443-449. 


§§  483,  484       CRIMES  AGAIxXST  THE  STATE  551 


SECTION    I 

OF    CRIMES    AGAINST    THE    STATE 

§  483.     Of  Crimes  against  the  Sovereignty  of  the  State. 

A  crime  which  directly  attacks  the  State  tends  to  destroy  or 
impair  its  sovereigtiti/,  either  as  a  member  of  the  family  of 
nations  or  as  the  supreme  ruler  over  its  own  people  and  its 
internal  affairs.  Any  act  on  the  part  of  a  citizen  which,  unless 
disavowed  and  punished  by  the  State,  places  it  in  the  attitude 
of  a  violator  of  international  obligations  subjects  it  to  the 
danger  of  reprisal  and  possibly  of  war,  and  thus  imperils  its 
external  sovereignty.  Any  act  which  attacks  the  authority  of 
the  State  over  its  own  people,  or  seriously  interferes  with  its 
administration  of  its  domestic  affairs,  diminishes  or  nullifies  its 
internal  sovereignty.  Hence  crimes  directly  against  the  State 
are  of  two  species:  (1)  Crimes  against  its  External  Sover- 
eignty; and  (2)  Crimes  against  its  Internal  Sovereignty. 

Rem.  The  rules  of  international  law  can  be  enforced  only  by 
the  concerted  action  of  the  family  of  nations  as  a  whole,  or  by 
the  action  of  each  nation  in  reference  to  its  own  subjects.  The 
former  method  is  rarely  practicable  or  necessary ;  and  hence 
each  individual  nation  is  often  called  upon  to  exercise  its  ex- 
ternal sovereignty  not  merely  to  protect  its  own  rights,  but  to  de- 
fend and  vindicate  the  rights  of  other  sovereign  States.  For  this 
reason  an  offence  against  a  foreign  State  becomes  in  many  cases 
an  indirect  attack  upon  the  external  sovereignty  of  the  State  to 
which  the  offender  himself  belongs,  and  therefore  is  justly  pun- 
ished by  it  as  a  crime. 

Read:   1  Bishop,  Criminal  Law,  §§  450-^80. 

Article    I 

OF  CRIMES  AGAINST  THE  EXTERNAL  SOVEREIGNTY  OF  THE  STATE 

§  484.     Of  International  Crimes. 

The  law  of  nations  is  a  part  of  the  municipal  law  of  every 
State  within  the  family  of  nations,  and  binds  the  individual 
citizen  as  well  as  the  political  society  to  which  he  belongs.  The 
rules  which  govern  international  intercourse  in  times  of  peace, 


552  ELEMENTARY  LAW  §  485 

and  fix  the  rights  and  duties  of  belHgerents  and  neutrals  in 
times  of  war,  extend  in  many  particulars  to  the  conduct  of 
the  members  of  the  commonwealth,  and  their  prohibitions 
thus  become  a  portion  of  its  criminal  law.  Frequently,  these 
prohibitions  are  formally  adopted  into  the  domestic  legislation 
of  the  State,  and  there  the  crimes  are  redefined,  forbidden,  and 
provided  with  a  suitable  penalty.  In  this  country  such  legisla- 
tion proceeds  from  the  Congress  of  the  United  States,  in  whose 
courts  also  all  these  offences  must  be  prosecuted. 

Rem..  The  principal  acts  affecting  foreign  nations  which  are 
expressly  forbidden  by  our  own  laws  are:  (1)  The  violation  of 
safe-conducts  or  passports  issued  under  the  authority  of  the 
United  States  to  the  citizens  of  any  foreign  State;  (2)  Un- 
lawful interference  with  the  persons  or  property  of  the  diplo- 
matic representatives  of  foreign  States;  (3)  TIk  publication  of 
seditious  libels  tending  to  bring  into  contempt  the  governments 
of  foreign  States,  or  their  ambassadors  and  ministers;  (4)  The 
forgery  or  counterfeiting  of  the  coins  or  notes  or  bonds  of 
foreign  States;  (5)  The  organization  of  military  or  naval  ex- 
peditions, or  the  enlistment  of  soldiers,  to  serve  against  a 
friendly  foreign  State ;  (fi)  The  infringement  of  rights  secured 
by  treaty  to  any  foreign  State  or  its  inhabitants.  Besides  these, 
many  lesser  offences  of  the  same  general  character  are  from  time 
to  time  forbidden  by  the  Federal  Statutes. 

Read:  4  Bl.  Com.,  pp.  66-71; 
Woolsey,  Int.  Law,  §  176; 
Davis,  Int.  Law,  pp.  69-74; 
Desty,  Criminal  Law,  §§  61-62  a; 
Clark  and  Marshall,  Criminal  Law,  §§  482,  484,  485; 
Archbold,  Criminal  Procedure,  pp.  1694-1696; 
1  Bishop,  Criminal  Law,  §§  481-485; 
Wharton,  Criminal  Law,  §§  1871-1908; 
McClain,  Criminal  Law,  §§  1341-1346. 


§  485.     Of  Crimes  against  All  Nations:  Piracy:  Slave  Trade. 

International  crimes  are  perpetrated  by  the  subjects  of  one 
of  two  nations  against  the  other.  Piracy,  on  the  contrary,  is 
committed  by  persons  who  are  regarded  as  the  subjects  of 
no  nation,  but  as  universal  enemies,  warring  against  the  honor, 
morality,  and  interests  of  all  civilized  States.  Piracy  includes 
every  act  of  robbery  or  forcible  depredation  upon  property  on 
the  high  seas,  or  on  waters  not  within  the  jurisdiction  of  any 


§  485  CRIMES   AGAINST  THE  STATE  553 

particular  State  or  on  the  shores  of  such  waters,  by  persons  who 
roam  the  seas  in  vessels  not  lawfully  commissioned  by  any 
State  with  the  intent  and  purpose  to  seize  and  appropriate  the 
ships  or  other  property  of  citizens  of  every  nation,  and  in  a 
spirit  of  general  hostility  to  all  mankind.  Pirates,  in  this  sense, 
are  at  war  with  the  whole  world,  and  may  be  pursued,  captured, 
and  punished  by  any  nation  within  whose  power  they  chance 
to  come.  The  slave  trade  is  made  piracy  by  treaties  between 
England  and  several  other  nations,  and  as  to  the  subject.s  of  those 
nations  who  engage  in  that  traffic  the  law  of  piracy  applies. 
Whether  it  falls  within  the  definition  of  piracy  given  by  the 
law  of  nations  would  seem  to  depend  upon  the  national  character 
and  relations  of  the  persons  who  are  seized  and  sold  as  slaves. 
Where  such  persons  belong  to  no  organized  community  which 
is  recognized  by  the  law  of  nations,  —  as  was  the  case  in  the 
African  slave  trade,  —  their  captors  and  vendors  cannot  be 
regarded  as  universal  enemies,  at  war  with  all  nations,  and 
therefore  have  been  uniformly  held  not  to  be  pirates  under  the 
general  rules  of  international  law.  But  where  the  citizens  of 
established  States  are  kidnapped  and  carried  into  slavery 
by  marine  depredators,  who  are  acting  without  a  commission 
from  any  sovereign  who  can  be  held  responsible  for  their  in- 
vasion, there  appears  to  be  no  real  distinction  between  their 
offence  and  that  wliich  always  has  been  treated  as  the  crime  of 
piracy. 

Rem.  In  this  country  the  crime  of  piracy  has  been  extended 
by  statute  to  cover  certain  acts  of  violence  by  seamen,  preventing 
the  master  from  defending  his  vessel  or  cargo  against  enemies; 
all  offences  on  the  seas  which  if  committed  on  the  land  would  be 
punishable  with  death ;  and  all  acts  of  hostility  on  the  high  seas 
against  the  United  States  or  any  of  its  citizens  under  color  or  pre- 
tence of  any  foreign  authority,  or  in  defiance  of  treaty  obliga- 
tions. Such  crimes  are  cognizable  only  in  the  courts  of  the 
United  States. 

Read:  4  Bl.  Com.,  pp.  71-73; 

1  Kent  Com.,  Lect.  ix,  pp.  183-200; 
Wheaton    Int.  Law,  §§  12'J-124; 
Wliarton,  Int.  Law,  §§  380-382; 
Ponieroy,  Int.  Law,  §  188; 
Glenn,  Int.  Law,  §§  73-77; 
Woolsey,  Int.  Law,  §§  144-146: 


554  ELEMENTARY  LAW  §  486 

Hawley,  Criminal  Law,  pp.  241-244; 
Clark  and  Marshall,  Criminal  Law,  §  483 ; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §  161 ; 

1  Russell  on  Crimes,  pp.  260-268 ; 

Archbold,  Criminal  Procedure,  pp.  1445-1463,  1857; 

2  Bishop,  Criminal  Law,  §§  1057-1063; 
Wharton,  Criminal  Law,  §§  1860-1869; 
McClain,  Criminal  Law,  §  1359. 


Article  II 

OF  CRIMES  AGAINST  THE  INTERNAL  SOVEREIGNTY  OF  THE  STATE 

§  486.     Of  Treason. 

Treason  is  an  attempt,  successful  or  otherwise,  to  overthrow 
and  destroy  the  State  itself.  It  includes  both  an  external  act 
and  a  specific  intent.  The  external  act  may  consist  either  of 
words  or  conduct.  The  specific  intent  is  the  intelligent  and 
wilful  purpose  to  subvert  the  sovereignty  or  terminate  the 
existence  of  the  State.  Treason,  being  an  attack  upon  the 
life  of  that  political  personality  on  whose  maintenance  all 
other  rights  depend,  is  the  highest  of  all  crimes,  and  in  all 
forms  of  society  has  deservedly  been  treated  with  great 
severity. 

Rem.  Under  the  earher  English  law  treason  embraced  a  great 
variety  of  offences,  to  which  were  added,  by  forced  judicial 
constructions,  many  actions  which  were  never  before  suspected  to 
be  treasonable.  By  the  Act  25  Edward  III,  ch.  2  (a.  d.  1350-51) 
these  numerous  treasons  were  re(Zwce(i  to  6'e^ew ;  (1)  To  compass 
or  imagine  the  death  of  the  king  or  queen,  or  of  their  eldest  son 
or  heir ;  (2)  To  violate  the  king's  consort,  or  his  eldest  daughter 
unmarried,  or  the  wife  of  his  eldest  son  or  heir ;  (3)  To  levy  war 
against  the  king  within  the  realm ;  (4)  To  adhere  to  the  king's 
enemies  within  the  realm  and  give  them  aid  and  comfort ;  (5) 
To  counterfeit  the  king's  great  or  privy  seal;  (6)  To  counter- 
feit the  king's  money,  or  to  bring  false  money  into  the  kingdom ; 
(7)  To  kill  the  chancellor,  treasurer,  or  a  judge,  while  in  the 
discharge  of  his  office.  Afterwards,  however,  in  the  reign  of 
Henry  VIII,  the  spirit  of  inventing  new  and  strange  treasons  was 
revived,  and  this  crime  was  held  to  embrace  such  acts  as  calling 
the  king  names  in  a  public  writing,  marrying  his  nephew  or 
niece  without  his  permission,  or  impugning  his  ecclesiastical  su- 
premacy. By  the  Statute  1  Mary,  ch.  1  (a.  d.  1553),  these  new 
forms  of  treason  were  again  abrogated,  and  the  Act  of  Edw.  Ill 


§  487  CRIMES   AGAINST  THE  STATE  555 

was  reaffirmed.  But  in  the  succeeding  reigns  the  number  was 
once  more  increased,  and  until  the  year  1847-48  included  "the 
intending,  within  the  realm  or  without,  of  any  restraint  of  the 
heirs  or  successors  of  the  king,  and  expressing  such  intention  by 
any  published  writing,  or  by  any  overt  act  or  deed."  The  history 
of  our  law  is  thus  pregnant  with  the  warning  that  every  disposi- 
tion to  create  new  treasons  is  prophetic  of  impending  despotism. 

Read:  4  Bl.  Com.,  pp.  75-93: 

Kenney,  Criminal  Law,  pp.  248-259; 
Archbold,  Criminal  Procedure,  pp.  1641-1643; 
2  Bishop,  Criminal  Law,  §§  1202-1213; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §  8; 
Wharton,  Criminal  Law,  §§  1782-1789; 
McClain,  Criminal  Law,  §§  1354-1356; 

Bolles,  Important  English   Statutes,  p.  18,  Act  23  Edw.  HI,  De- 
fining Treason. 


§  487.     Of  Treason  against  the  United  States:  Levying  War. 

The  Constitution  of  the  United  States  provides  that  treason 
against  the  United  States  shall  consist  only  in  levying  war  against 
them,  or  in  adhering  to  their  enemies  giving  them  aid  and  com- 
fort. To  levy  war  against  the  United  States  is  to  assemble  a 
body  of  men  in  order  to  effect,  by  force,  a  treasonable  pur- 
pose. The  number  assembled  is  not  material,  nor  is  it  neces- 
sary that  any  armed  interference  with  the  operations  of  the 
State  occur;  the  assembling  with  a  treasonable  purpose  con- 
stitutes and  completes  the  crime.  A  treasonable  purpose  is  a 
specific  intent  to  attain,  by  means  of  force  or  intimidation,  some 
end  of  a  public  nature,  —  such  as  to  overthrow  the  existing 
government,  or  totally  to  nullify  some  legislative  act,  or  to 
hinder  its  execution,  or  to  compel  its  repeal.  Resistance  to  pub- 
lic officers  or  defiance  of  the  law  for  merely  private  ends  are 
crimes  against  the  public  welfare,  but  are  not  treason.  When 
war  is  actually  levied  all  persons  who  perform  any  part  therein, 
however  minute  and  however  remote  from  the  scene  of  action, 
if  they  are  leagued  in  the  general  conspiracy  are  guilty  of  treason. 

Rem.  This  provision  of  the  Federal  Constitution  sharply 
distinguishes  l^etween  those  two  of  the  seven  treasons,  recognized 
by  the  Act  of  Edw.  Ill,  which  attack  the  State  itself  and  the  five 
which  are  directed  at  the  persons  of  its  rulers,  or  at  the  mere  in- 
struments of  its  sovereignty;  and  is  thus  in  harmony  with  our 
fundamental  conception  that  the  State  is  the  organized  poliiica) 


556  ELEMENTARY  LAW  §  488 

society,  and  not  the  individuals  or  agencies  by  whom,  for  the 
time  being,  its  affairs  may  chance  to  be  conthicted.  Any  attempt, 
therefore,  to  elevate  into  the  crime  of  treason  an  attack  which 
terminates  merely  upon  the  person  of  a  public  officer,  and  does 
not  affect  the  corporate  personality  of  the  State  itself,  is  a  return 
to  anti-American  ideas,  and  a  retrogression  into  European 
despotism. 

Read:  Hawley,  Criminal  Law,  pp.  115-117; 

Desty,  Criminal  Law,  §  66  6 ; 

May,  Law  of  Crimes,  §§  130-139; 

Archbold,  Criminal  Procedure,  pp.  1648-1651; 

2  Bishop,  Criminal  Law,  §§  1214-1231; 

Wharton,  Criminal  Law,  §§  1790-1800; 

McClain,  Criminal  Law,  §  1357. 

§  488.     Of  Treason  against  the  United  States:  Adhering  to  the 
Enemy. 

The  enemies  of  the  United  States,  in  reference  to  the  crime 
of  treason,  are  the  belligerent  forces  of  a  foreign  State  with  which 
the  United  States  is  engaged  in  war,  and  foreign  pirates  or 
robbers  who,  without  authority  from  any  particular  State, 
have  invaded  the  United  States.  Domestic  robbers  and  pirates, 
or  insurgents  prosecuting  a  rebellion,  are  criminals,  and  may 
be  guilty  of  levying  war  against  the  United  States,  but  are  not 
its  "enemies,"  as  the  term  is  here  employed.  To  adhere  to 
the  enemy,  giving  them  aid  and  comfort,  is  to  render  voluntary 
assistance  to  them  in  their  belligerent  operations ;  as  by  uniting 
with  them  in  their  acts  of  hostility  against  the  United  States  or 
its  allies ;  or  by  delivering  up  to  them  its  fortresses  or  ships  of 
war;  or  by  enlisting  in  their  ranks  though  no  acts  of  hostility 
afterwards  occur;  or  by  raising  troops  for  their  army  or  navy; 
or  by  furnishing  them  with  money,  arms,  or  intelligence,  even 
though  such  supplies  should  be  intercepted  or  the  intelligence 
should  never  reach  them. 

Rem.  Acts  of  assistance  to  the  enemy,  if  'performed  unwill- 
ingJy  under  a  well-grounded  fear  of  immediate  death  or  grievous 
botlily  harm  in  case  of  refusal,  are  regarded  by  the  law  as  without 
criminal  intent,  and  therefore  excusable.  But  the  fear  of  lesser 
evils,  such  as  the  loss  of  property,  docs  not  discharge  the  actor 
from  responsibility,  thougli  it  may  be  shown  in  evidence  upon 
the  question  of  his  treasonable  purpose,  and  to  qualify  the  meas- 
ure of  his  punishment. 


489  CRIMES   AGAINST  THE  STATE  557 

Read:  Hawley,  Criminal  Law,  p.  117; 
Desty,  Criminal  Law,  §  66  c; 
May,  Law  of  Crimes,  §§  130-139; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §§  158-160; 
Arclibold,  Criminal  Procedure,  pp.  1651-1652; 
2  Bishop,  Criminal  Law,  §§  1232-1234; 
Wharton,  Criminal  Law,  §§  1801-1803  a. 


§  489.  Of  Treason  against  the  United  States:  the  Overt  Act. 
The  CoiLstitution  of  tiie  United  State.s  further  provides  that 
no  person  shall  be  convicted  of  treason,  unless  on  the  testi- 
mony of  two  witnesses  to  the  same  m'crt  act,  or  a  confession 
in  open  court.  The  term  overt,  as  predicated  of  an  act  of 
trea.son,  .signifies  that  the  act  is  open  and  apparent,  thereby 
distinguishing  it  from  a  mere  mental  purpose  or  conception ; 
and  witlunit  such  act  tiiere  can  be  no  treason  on  the  part  of 
any  person,  nor  when  trea.son  is  actually  committed  by  some 
person  can  any  other  [)er.son  be  a  participator  therein  unless  his 
ac-t  of  particij)ation  is  also  overt.  The  constitutional  provision 
as  to  the  proof  by  which  this  act  must  be  established  was  adopted 
in  order  to  prevent  a  conviction  for  treason,  and  the  infliction 
of  its  extreme  penalties,  in  cases  where  the  crime  had  been 
intended  by  the  accused  but  had  fallen  short  of  actual 
completion. 

Rem.  AVhere  the  treason  consists  in  leiv/inrj  xcar  the  act  of 
treason  must,  at  least  on  the  part  of  .some  of  the  conspiring 
traitors,  be  not  only  an  ojjcn  act  but  a  physical  act,  since  no  com- 
mon intention  subsisting  in  the  minds  of  the  parties,  and  no  oral 
or  written  agreement  in  pursuance  of  such  intention,  amounts  to 
this  form  of  treason  until  so  far  carried  into  effect  that  some  of 
tiie  parties  a.ssemble  together,  with  tiie  immediate  purpose  to  pro- 
ceed at  once  to  accomplish  their  treasonable  design.  \\\\{  in  ad- 
hrnnc)  to  the  public  enciiii/  the  trea.sonable  act  may  be  com]ileted 
by  words  alone,  as  wlwvv  the  crime  consists  in  the  oral  communi- 
cation of  intelligence  which  may  be  useful  to  the  enemy  in  its 
belligerent  operations. 

Read:  Coke,  Tliird  Institute,  pp.  12-14; 
Desty,  Criminal  Law,  §§  66-<)()  a,  67" 
Kenney,  Criminal  Law,  pp.  259-261, 
2  Bishop,  Criminal  Law,  jj  1231; 
Wharton,  Criminal  Law,  §  1793; 
McClain,  Criminal  Law,  §  1358. 


558  ELEMENTARY  LAW  §§  490,  491 

§  490.     Of  Treason  against  the  Individual  States  of  the  American 
Union. 

Treason  may  be  committed  against  a  single  State  of  the 
American  Union  as  well  as  against  the  United  States.  In  the 
absence  of  constitutional  and  statutory  provisions  defining  and 
forbidding  it  such  treason  is  an  offence  against  the  unwritten  law 
of  the  State,  and  consists  either  in  levjing  war  against  the 
State  or  in  adhering  to  its  public  enemies.  Other  acts  may 
be  made  treasonable  by  the  provisions  of  the  local  law. 

Rem.  It  has  been  held  that  Avhere  the  same  act  is  treasonable 
both  against  the  individual  State  and  the  United  States,  it  is  a 
crime  only  against  the  United  States.  This  might  be  true  of  an 
adhering  to  the  public  enemy,  except  in  those  cases  of  sudden 
invasion  where  the  Federal  Constitution  recognizes  the  right  of 
a  single  State  to  engage  in  war  for  its  own  protection.  Insurgent 
citizens  may,  however,  levy  war  against  an  indi>'idual  State  with- 
out attacking  the  United  States,  and  thus  be  guilty  of  treason 
against  the  State  alone. 

Read:  Archbold,  Criminal  Procedure,  pp.  1652-1655; 
2  Bishop,  Criminal  Law,  §  1254; 
Wharton,  Criminal  Law,  §§  1812-1819. 


§  491.     Of  Persons  Capable  of  Treason. 

The  essence  of  treason  is  the  breach  of  that  allegiance  which 
the  subject  owes  to  the  State,  and  hence  no  one  can  be  guilty 
of  this  crime  whose  sole  allegiance  is  due  to  a  foreign  State. 
It  has  been  claimed  that  resident  aliens,  though  owing  a  local 
and  temporary  allegiance  to  the  nation  wherein  they  dwell,  are 
not  capable  of  treason.  But  later  decisions  have  determined,  in 
harmony  with  the  English  rule,  that  a  resident  alien  levying 
war  against  the  United  States,  or  adhering  to  its  enemies  when 
such  enemies  are  not  the  miUtary  forces  of  the  State  to  which 
the  alien  owes  his  permanent  allegiance,  is  guilty  of  treason; 
and  that,  in  the  event  of  war  between  his  country  and  our  own, 
he  must  either  preserve  a  strict  neutrality,  or  openly  espouse 
the  hostile  cause  and  identify  himself  with  the  enemy,  at  the 
peril  of  being  treated  as  a  traitor  or  a  spy. 

Rem.  Non-resident  aliens  levying  war  against  the  United 
States,  or  adhering  to  its  enemies,  commit  no  offence  when  their 


§§  492,  493       CRIMES  AGAINST  THE  STATE  559 

own  State  is  at  war  with  the  United  States.  When  their  own 
State  is  at  peace  with  the  United  States,  these  acts  may  violate  the 
law  of  nations,  but  are  not  treason.  Where  the  actors  belong  to  no 
State  they  may  be  pirates  or  robbers,  but  they  are  not  traitors. 

Read:  Hawley,  Criminal  Law,  p.  117; 
2  Bishop,  Criminal  Law,  §§  1235,  1236; 
Wharton,  Criminal  Law,  §§  1805-1811. 


§  492.     Of  Misprision  of  Treason. 

Misprision  of  treason  is  the  wilful  concealment  of  a  known 
treason,  by  a  person  who  neither  assents  to  nor  takes  part  in 
its  commission.  It  is  the  duty  of  every  individual  who  becomes 
cognizant  of  any  treasonable  act  already  perpetrated  against 
the  State  to  which  his  allegiance  is  due,  or  of  the  purpose  of 
other  parties  to  perform  such  treasonable  act,  to  give  immedi' 
ate  notice  to  the  proper  authorities,  in  order  that  the  act  may 
be  prevented  or  the  offenders  captured  and  punished.  In  the 
United  States  this  notice  should  be  given  to  the  President  or  the 
governor  of  the  State,  or  to  some  judicial  officer ;  and  the  fail- 
ure to  do  so  is  a  crime  of  only  less  gravity  than  the  treason  itself. 

Rem.  Misprision  signifies  the  neglect  or  voluntary  breach  of 
some  duty  which  the  citizen  owes  the  State.  The  term  is  used  in 
criminal  law  to  denote  a  certain  relation  to  felonies  and  treason, 
next  below  that  of  accessaries  before  and  after  the  fact.  An 
accessary  not  only  has  a  guilty  knowledge,  but  in  some  manner 
influences  the  actor  to  commit  the  act  or  aids  him  to  escape  its 
consequences.  Guilty  knowledge  alone  is  sufficient  for  misprision. 
In  punishing  it  the  State  reaches  the  most  remote  of  all  those 
persons  who  can,  with  any  reason  or  justice,  be  held  responsible 
for  the  perpetration  of  the  crime. 

Read:  4  Bl.  Com.,  pp.  119-121; 

Hawley,  Criminal  Law,  pp.  117,  118; 
Desty,  Criminal  Law,  §  66  d; 
Kenney,  Criminal  Law,  pp.  261,  262; 
Archbold,  Criminal  Procedure,  pp.  1643,  1644; 
1  Bishop,  Criminal  Law,  §§  716-722; 

Marshall's  Decisions,  pp.  .52-81  (4  Cranch,  pp.  7.5-137),  pp.  82-165 
(4  Cranch,  App.,  pp.  470-507). 

J  493.     Of  Sedition. 

Sedition  is  an  act,  not  amounting  to  treason,  committed 
with   the   intent    to   bring   into   contempt  or  hatred  cither  the 


560  ELEMENTARY  LAW  §  494 

State  itself  or  its  rulers,  or  its  established  political  institutions. 
It  may  take  the  form  of  a  conspiracy  to  perpetrate  acts  which, 
if  perpetrated,  would  be  treason;  or  of  words,  spoken  or  writ- 
ten, calculated  to  excite  such  acts  in  others ;  or  of  preparations 
and  attempts  in  contemplation  of  a  future  treasonable  act.  In 
times  of  public  agitation  such  acts  are  common,  and  in  the 
state  of  popular  feeling  are  often  very  dangerous,  requiring 
prompt  and  stringent  measures  to  prevent  them  from  develop- 
ing into  open  treason. 

Rem.  The  details  of  these  seditions,  conspiracies,  and  libels 
are  generally  defined  by  statute.  Otherwise  too  liberal  an  in- 
terpretation given  to  the  word  "sedition"  by  the  courts  might 
unreasonably  restrict  the  liberty  of  the  citizens  to  organize,  pro- 
tect, and  engage  in  active  efforts  for  the  necessary  redress  of 
grievances. 

Read:  Cooley,  Const.  Law,  pp.  108,  109; 
Desty,  Criminal  Law,  §  §  69-69  h. 


§  494.     Of  Crimes  against  the  Administration  of  Government. 

All  offences  which  interfere  with  the  State  in  the  discharge 
of  its  legislative,  executive,  or  judicial  functions  are  crimes 
against  its  internal  sovereignty.  What  actions  and  omissions 
constitute  such  crimes  it  is  for  the  State  to  decide,  from  time 
to  time,  in  view  of  their  effect  upon  its  maintenance  of  its  own 
honor  and  authority,  and  upon  the  welfare  of  its  people.  Hence 
these  crimes  are,  for  the  most  part,  of  statutory  definition  only, 
though  the  groups  to  which  they  belong  are  necessarily  more 
or  less  permanent  in  the  law.  In  this  country  these  statutes 
are  in  some  instances  Acts  of  Congress;  in  others,  the  enact- 
ments of  the  legislatures  of  the  individual  States.  Frequently 
the  same  act  may  be  a  crime  against  both  sovereignties,  and 
be  punishable  in  each  as  a  distinct  offence. 

Rem,.  Of  the  groups  of  crimes  forbidden  by  these  Federal  or 
local  statutes  the  most  general  and  important  are  the  following: 
(1)  Malfeasance  in  office  on  the  part  of  legislative,  executive,  or 
judicial  functionaries ;  (2)  Open  and  defiant  contempt  of  legisla- 
tures and  courts  in  their  presence  while  in  session ;  (.3)  Unwar- 
ranted interference  with  the  affairs  of  State  by  giving  improper 
information  to  foreign  governments,  or  by  endeavoring  to  preju- 


§  495       CRIMES   AGAINST  THE   PUBLIC  WELFARE  561 

dice  their  action  toward  the  United  States;  (4)  Counterfeiting  the 
coin  of  the  realm,  and  breach  of  the  revenue  laws  by  smuggling 
or  fraudulent  imposition;  (5)  Violations  of  the  postal  laws  by 
tampering  with  the  mails,  or  using  them  for  illicit  purposes; 
(6)  Misprision  of  felony ;  (7)  Refusal  to  assist  executive  officers 
in  the  performance  of  their  duties,  when  properly  and  lawfully 
called  upon  to  aid  in  suppressing  riots,  capturing  felons,  ar- 
resting conflagrations,  or  meeting  other  public  emergencies; 
(8)  Destroying  numitions  of  war,  fortresses,  vessels  belonging 
to  the  navy,  or  other  public  property  necessary  for  the  protection 
and  defence  of  the  State ;  (9)  Infringement  of  the  rules  of  mili- 
tary and  martial  law  by  persons  to  whom,  on  account  of  their 
official  relation  to  the  State  or  of  the  locality  in  which  they 
dwell,  such  rules  apply;  (10)  Violations  of  the  laws  governing 
the  elective  franchise. 

Read:  4  Bl.  Com.,  pp.  121-126; 

Hawley,  Criminal  Law,  pp.  253-257; 

Desty,  Criminal  Law,  §§  70-70/,  73-73  d; 

May,  Law  of  Crimes,  §§  154-158; 

Clark  and  Marshall,  Criminal  Law,  §§  442-444; 

1  Russell  on  Crimes,  pp.  883-888; 

Archbold,  Criminal  Procedure,  pp.  1682-1694,  1848-1851; 

2  Bisliop.  Criminal  Law,  §§  240  a-273; 
Bishop,  Statutor>'  Crimes,  §§  802-843; 
Wharton,  Criminal  Law,  §§  1822-1848; 

McClain,  Criminal  Law,  §§  9,  941-951,  1327-1340,  1347-1353. 


SECTION    II 

OF    CRIMES    AGAINST    THE    PUBLIC    WELFARE 

§  495,     Of  the  Public  Welfare. 

The  public  welfare  consists  in  the  enjoyment  by  the  people 
at  large  of  those  benefits  which  political  institutions  are  in- 
tended to  bestow.  These  benefits  are  the  protection  of  life, 
health,  liberty,  property,  and  family  rights,  through  the  en- 
actment and  enforcement  of  laws  which  preserve  peace  and 
order  in  society,  promote  good  morals,  secure  freedom  and 
fair  dealing  in  business  enterprises,  prevent  or  remove  con- 
ditions dangerous  to  bodily  comfort  and  safety,  and  provide 
adequate  methods  for  the  redress  of  private  injuries.  Any  inter- 
ference with  the  efforts  of  the  State  to  accomplish,  through  these 
means,  its  duty  to  its  citizens  is  a  wrong  not  only  against 
the  particular  person  who  may  sufl"er  therefrom,  but  against  the 

36 


562  ELEMENTARY  LAW  §  496 

whole  public  whose  general  welfare  is  imperiled  whenever  the 
rights  of  any  of  its  members  are  invaded  with  impunity;  and 
hence  acts  of  this  character  are,  as  they  should  be,  ordinarily 
punishable  as  crimes.  Such  acts  are  very  numerous  and  vary 
with  the  conditions  of  society.  Those  which  are  more  per- 
manent are  usually  classified  under  five  heads :  (1)  Crimes 
against  the  Public  Peace;  (2)  Crimes  against  Public  Policy; 
(3)  Crimes  against  Public  Trade;  (4)  Crimes  against  Public 
Health;    (5)  Crimes  against  Public  Justice. 

Rem.  The  welfare  of  the  State  is  the  welfare  of  the  people  of 
whom  it  is  composed.  Individuals,  indeed,  may  flourish  while 
the  State  decays,  but  the  condition  of  the  people  at  large  measures 
the  advancement  or  degeneration  of  the  community  to  which 
they  belong.  Every  wrongful  act  affecting  any  member  of  the 
State  is,  therefore,  to  be  judged  not  by  the  consequences  which  it 
does  produce  in  a  particular  instance,  but  by  the  consequences 
which  it  ivould  produce  were  it  permitted  to  become  general; 
and  the  criminal  instincts  which  prompt  it  are  to  be  suppressed 
by  penalties  severe  enough  to  neutralize  the  influence  of  bad  ex- 
ample and  profitable  crime,  lest  the  contagion  spread  throughout 
the  commonwealth,  and  the  neglect  to  punish  one  apparent  wrong 
operates  as  a  stimulus  to  all  other  evil-minded  persons  to  gratify 
their  criminal  desires. 

Read:  Desty,  Criminal  Law,  §  91; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §  148. 

Article  I 

OF    CRIMES    AGAINST    THE    PUBLIC    PEACE 

§  496.     Of  Riot,  Rout,  and  Unlawful  Assembly. 

A  crime  against  the  public  peace  is  an  act  by  which  the  peace 
and  order  of  society  are  disturbed.  Of  these  crimes  a  riot 
is  the  most  flagrant  and  atrocious.  It  consists  in  the  public 
performance  of  some  unlawful  act  of  violence,  or  of  some  law- 
ful act  in  a  violent  and  tumultuous  manner,  by  three  or  more 
persons  who  are  congregated  together  for  that  purpose.  A 
rout  is  an  incipient  riot.  It  consists  in  the  congregating  together 
of  three  or  more  persons  for  the  purpose  of  doing  some  act 
which,  if  done,  would  be  a  riot,  and  the  taking  of  some  definite 
steps  toward  its  accomplishment.  It  differs  from  a  riot  in 
that  the  riotous  purpose  is  not  fully  expressed  in  an  unlawful 


§  497      CRIMES  AGAINST  THE  PUBLIC  WELFARE         563 

act  of  violence,  though  something  is  done  toward  its  realization. 
An  unlawful  assembly  is  the  congregating  together  of  three  or 
more  persons  for  the  purpose  of  doing  some  act  which,  if  done, 
would  be  a  riot,  but  without  taking  any  active  steps  in  reference 
thereto.  Such  an  assembly  need  not  intend  any  specific  mis- 
chief; if  its  general  designs  are  turbulent,  and  by  its  numbers, 
appearance,  or  place  of  meeting  it  is  calculated  to  excite  public 
alarm,  it  is  unlawful. 

Rem.  It  is  of  the  essence  of  a  riot,  that  the  act  itself,  or  the  mode 
of  its  performance,  should  be  calculated  to  excite  terror  in  the 
minds  of  persons  of  ordinary  fortitude,  other  than  the  rioters.  It 
is  not  necessary  that  the  intent  to  do  the  riotous  act  should  have 
existed  before  the  actual  assembly  of  the  rioters ;  for  a  peaceable 
and  lawful  assembly  may,  by  the  subsecjuent  formation  of  a  riot- 
ous design  and  the  commission  of  the  riotous  act  in  pursuance 
thereof,  become  a  riot.  All  persons  who  engage  in  inciting  others 
to  a  riot,  which  subsecjuently  takes  place  as  the  result  of  such  in- 
citement, though  they  may  be  absent  when  the  riotous  acts  are 
finally  performed;  all  who  unite  themselves  with  the  assembly 
after  the  riot  has  commenced,  and  assist  therein ;  all  who  are 
present  in  the  asseml)Iy,  and  fail  to  leave  it  after  due  notice  to  dis- 
perse from  the  public  authorities;  and  all  who,  being  construc- 
tively but  not  actually  present,  ai<l  and  abet  the  rioters,  —  are 
responsible  not  merely  for  the  precise  act  originally  intended  by 
the  riotous  assembly,  but  for  every  other  act  to  which  it  naturally 
leads,  however  heinous  and  unexpected  that  act  may  be,  and 
even  though  such  act  may  have  been  committed  without  their 
personal  knowledge  and  participation. 

Rkad:  4  BI.  Com.,  pp.  142,  143,  146,  147; 
Hawley,  Criminal  Law,  pp.  266-269; 
Desty,  Criminal  Law,  §§  9()-98e; 
May,  Law  of  Crimes,  §§  Ki.'j,  166; 
Clark  and  Marshall,  Criminal  Law,  §§  423^25; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §§  150-152; 
Keiiney,  Criminal  Law,  pp.  264-271 ; 

1  Russell  on  Crimes,  pp.  55.3-586; 
Arclibold,  Criminal  Procedure,  pp.  1697-1709; 

2  Bishop.  Criminal  Law,  §§  114.3-11.55,  1183-1186,  1256-1259; 
Wharton,  Criminal  Law,  §§  395-400,  1535-1550,  1555; 
McClain,  Criminal  Law,  §§  991-1005. 

§  497.     Of  Disturbing  Meetings. 

DisturhitK)  a  nnrfinf/  is  (he  wrongful  interruj)tion  of  persons 
who  are  assembled   together  for  a  lawful   purpo.se.     All   per- 


564  ELEMENTARY  LAW  §  498 

sons  have  a  right  to  peaceably  assemble  for  religious  worship, 
for  political  discussion,  or  for  any  other  purpose  not  in  itself 
unlawful ;  and  the  invasion  of  this  right  by  others  is  an  in- 
dictable offence.  The  interruption  must,  however,  be  wilful 
and  designed,  and  not  the  result  of  accident  or  mistake. 

Rem.  Of  what  acts  a  disturbance  may  consist  depends  upon 
the  character  and  object  of  the  meeting.  To  some  assemblies 
noise  and  tumult  are  appropriate,  and  all  persons  are  at  liberty 
not  only  to  be  present,  but  to  express  their  sentiments  and  feelings, 
in  any  manner  suited  to  their  tastes.  Other  assemblies  are  open  to 
certain  persons  only,  or  their  rules  and  customs  restrict  the  right 
to  take  an  active  part  in  their  proceedings  to  particular  members. 
Judged  by  the  standards  thus  established  any  wilful  conduct 
which  disturbs  the  meeting,  and  tends  to  defeat  its  purpose,  con- 
stitutes this  crime. 

Read:  Desty,  Criminal  Law,  §§  93-93  b; 
Clark  and  Marshall,  Criminal  Law,  §  426; 

1  Russell  on  Crimes,  pp.  652-658; 

2  Bishop,  Criminal  Law,  §§  301-310  a; 
Wharton,  Criminal  Law,  §§  1556,  1556  a; 
McClain,  Criminal  Law,  §§  1022-1028. 


§  498.     Of  Forcible  Entry  and  Detainer. 

Forcible  Entry  is  an  entry  upon  land,  which  is  in  the  peace- 
able possession  of  another,  with  such  an  array  of  force  as  to 
arouse  terror  in  the  minds  of  those  who  are  present  opposing 
the  entry.  The  premises  entered  tipon  must  be  in  the  possession 
as  distinguished  from  the  bare  custody  of  the  holder,  and  the 
act  of  entry  must  be  accompanied  with  such  violence  of  con- 
duct or  language,  or  be  effected  by  such  an  array  of  numbers,  as 
to  excite  a  reasonable  apprehension  in  the  minds  of  those  who 
oppose  it  that  bodily  harm  to  themselves,  or  a  breach  of  the 
public  peace,  will  occur  if  they  do  not  surrender  their  possession. 
But  the  violence  may  be  offered  to  the  person  either  upon  the 
premises  or  at  a  distance  therefrom,  provided  it  is  coupled  with 
a  claim  to  the  possession  of  the  land  and  with  the  design  thereby 
to  enforce  such  claim.  Forcible  Detainer  is  the  detention  of 
land  from  the  rightful  claimant  by  an  intruder,  or  by  a  tenant 
whose  estate  has  expired,  by  means  of  such  force  or  intimida- 
tion as  to  excite  terror  in  the  mind  of  the  claimant.    This  offence 


§  499       CRIMES   AGAINST  THE  PUBLIC  WELFARE  565 

is  the  converse  of  the  preceding,  and  the  same  rules  as  to  the 
nature  and  amount  of  tiie  f(jrce  displayed  applj-.  A  forcible 
entry  or  detainer  by  a  person  claiming  no  interest  in  the  land 
is  a  still  more  aggravated  form  of  the  offence. 

Rem.  Under  the  early  English  law  the  rightful  claimant  of 
land,  who  had  been  disseised  or  turned  out  of  possession,  might 
regain  possession  by  force  unless  his  right  had  been  legally  barred. 
But  l)y  the  Act  of  5  Rich.  II  (a.  d.  1382),  and  later  statutes 
in  this  country,  such  forcible  entries  have  been  prohibited  as 
breaches  of  the  peace,  and  punished  with  severe  penalties. 

Read:  4  Bl.  Com.,  pp.  148,  149; 

Boone,  Real  Property,  §§  495-511; 

Desty,  Criminal  Law,  §§  99-100  a; 

May,  Law  of  Crimes,  §§  167-170; 

Clark  and  Marshall,  Criminal  Law,  §§  417,  418; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §§  154,  155; 

Kenney,  Criminal  Law,  p.  272; 

1  Russell  on  Crimes,  pp.  717-730; 
Arcliixjld,  Criminal  Procedure,  pp.  1128-1137; 

2  Bishop,  Criminal  Law,  §§  489-520  a; 
Wharton,  Criminal  Law,  §§  1083-1113; 
McClain,  Criminal  Law,  §§  836-841; 
Maxwell,  Pleadinfj;  and  Practice,  §§  563-569; 

Bolles,  Important  English  Statutes,  p.  21.     Act  6  Rich.  II. 

§  499.     Of  Duelling:  Challenging:  Affrays. 

Duellinr/  is  the  agreement  of  two  or  more  persons  to  fight 
with  deadly  weapons  with  intent  to  take  life,  and  their  actual 
fighting  in  pursuance  of  such  agreement.  When  death  results 
from  a  duel  it  is  murder  in  the  person  killing;  and  all  those 
who  are  present  and  give  countenance  to  the  duel  are  partici- 
pators in  the  crime.  ChaUcnrjinq  is  the  exciting,  inviting,  or 
[)rovoking  of  another  to  fight.  The  challenge  may  be  oral  or 
written,  or  may  be  conveyed  by  any  signs  which  are  intended 
to  be  unflei-stood,  and  by  the  other  party  arc  understood,  to 
be  an  offer  to  fight.  The  bearer  of  a  clialleng(>  to  fight  a  duel, 
if  the  duel  actually  takes  place  and  either  party  is  killed,  is 
an  accessary  before  the  fact  to  the  homicide.  Ahu.s-irc  Innfjuaqc, 
not  implying  a  present  readiness  to  fight,  is  not  a  challenge; 
but  like  many  other  actions  tending  to  provoke  a  conflict, 
an(i  disturb  the  public  peace,  is  frequently  prohibited  by  statute. 
An  ojjray  is  the  unlawful  fighting  together  of  two  or  more  pe^ 


566  ELEMENTARY  LAW  §  500 

sons,  in  a  public  place,  to  the  terror  of  the  public.  A  public 
place  is  a  place  to  which  people  in  general  are,  at  the  time, 
privileged  to  resort  without  an  invitation ;  and  includes  not 
merely  the  area  open  to  the  public  but  localities  so  contiguous 
thereto  that  acts  of  violence  performed  in  them  could  be  seen 
or  heard  therefrom,  and  thus  disturb  the  public.  A  fight  in 
a  private  place,  though  in  the  presence  of  others,  is  not  an 
affray,  but  may  be  a  criminal  assault  or  a  statutory  crime. 

Rem.  Fighting  consists  of  actions  attempting  or  inflicting 
violence,  not  of  mere  verbal  abuse.  The  terror  suffered  by  the 
public  may  be  actual,  or  may  be  presumed  from  the  nature  of  the 
contest  if  this  is  calculated  to  excite  it.  An  affray  may  be  ag- 
gravated by  the  circumstances  under  which  it  is  coinmitted,  — 
as  if  it  be  dangerous  in  its  tendency  or  occur  in  a  court  of  justice. 
To  fight  in  self-defence  does  not  make  a  party  guilty  of  an 
affray. 

Read:  4  Bl.  Com.,  pp.  145,  146,  150,  199; 
Hawley,  Criminal  Law,  p.  269; 
Desty,  Criminal  Law,  §§  94-95  c; 
May,  Law  of  Crimes,  §§  163,  164; 
Clark  and  Marshall,  Criminal  Law,  §§  419-421; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §'§  149,  153; 
Kenney,  Criminal  Law,  pp.  271,  272; 

1  Russell  on  Crimes,  pp.  587-594; 

Archbold,  Criminal  Procedure,  pp.  833-845,  1709-1713; 

2  Bishop,  Criminal  Law,  §§  1-7,  311-317; 
Bishop,  Statutory  Crimes,  §  298; 

Wharton,  Criminal  Law,  §§  1551-1554,  1767-1778; 
McClain,  Criminal  Law,  §§  1006-1021. 


§  500.     Of  Criminal  Libel. 

A  libel  is  the  wilful  and  malicious  publication,  in  a  permanent 
and  visible  form,  of  some  matter  tending  to  disgrace  or  degrade 
another,  or  to  render  him  ridiculous  in  the  eyes  of  the  com- 
munity. It  is  a  civil  injury,  and  is  also  a  crime.  Its  attributes 
as  a  crime  are  the  same  as  in  a  private  wrong,  though  its  crimi- 
nality consists  rather  in  its  consequences  as  endangering  the 
public  peace  than  in  the  injury  it  may  inflict  upon  private 
reputation.  When  directed  against  public  officers,  or  political 
institutions,  it  may  become  a  crime  against  the  sovereignty  of 
the  State  itself. 


§  501       CRIMES  AGAINST  THE   PUBLIC  WELFARE  567 

Rem.  The  distinction  between  a  criminal  libel  when  consid- 
ered as  an  attack  upon  private  reputation,  and  the  same  libel  in 
its  aspect  as  endangering  the  public  peace,  is  important  in  view 
of  the  defences  which  are  open  to  the  author  of  the  libel  upon  his 
prosecution  for  the  crime.  No  publication  made  with  good  mo- 
tives, and  for  justifiable  ends,  is  malicious ;  and  therefore  such 
a  pubUcation  is  not  a  libel,  either  criminal  or  civil.  A  libellous 
publication,  if  true,  is  not  always  an  injury  for  which  damages  can 
be  recovered,  nor  should  it  be  regarded  as  a  crime  if  its  sole  effect 
is  to  impair  the  reputation  of  the  party  libelled.  But  where  it  con- 
stitutes a  substantial  provocation  to  the  party  libelled  to  break 
the  public  peace  its  truth  or  falsehood  is  of  little  consequence, 
except  perhaps  in  mitigation  of  the  penalty,  since  in  many  cases 
the  greater  the  truth  of  the  publication  the  more  likely  it  is  to  lead 
to  acts  of  violence.  This  relation  of  the  libel  to  the  guilt  of  the 
libeller,  under  the  doctrines  of  our  modern  constitutions  and 
statutes  which  permit  the  truth  of  the  libel  to  be  shown  by  the 
libellee  in  his  defence,  has  been  thrown  into  some  confusion  by 
the  application  to  one  form  of  criminal  libel,  of  rules  logically 
appHcable  only  to  the  other.  It  seems  absurd  to  prosecute  as  a 
crime  a  mere  injury  to  reputation  for  which  the  civil  courts 
would  offer  no  redress,  and  e(|ually  absurd  to  allow  the  public 
peace  to  be  imperilled  by  a  libel  because  the  libel  happens  to  be 
true.  It  would  seem  more  reasonable  for  the  State  not  to  recog- 
nize a  true  libel  as  a  crime  unless  it  does  endanger  the  public 
peace;  and  to  punish  libels,  which  are  a  menace  to  the  social 
order,  whether  or  not  their  subject-matter  may  be  true. 

Read:  4  Bl.  Com.,  pp.  150-153; 

Desty,  Criminal  Law,  §§  140-140  Z; 

May,  Law  of  Crimes,  g§  172-176; 

Clark  and  Marsliall,  Criminal  Law,  §  428; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §§  156,  157; 

Kenney,  Criminal  Law,  pp.  297-303; 

1  Russell  on  Crimes,  pp.  59;'>-651 ; 
Archbold,  Crimiiial  Procedure,  pp.  1028-1067; 

2  Bisliop,  Criminal  Law,  §§  905-949; 
Wharton,  Criminal  Law,  §§  313-318,  1594-1666  o; 
McClain,  Criminal  Law,  §§  1040-1070. 


§  601.     Of  Carrying  Anns. 

A  breach  of  the  peace  may  be  committed  by  carrying  dan- 
gerous or  nnusual  irrapon.s  in  j)ublic  places,  openly  and  to  the 
annoyance  or  the  terror  of  the  public.  The  Federal  Con- 
stitution secures  to  every  citizen  the  right  to  keep  and  bear 
such  arms  a.s  are  customarily  employed  for  warlike  purposes; 


568  ELEMENTARY    LAW  §  502 

and  to  cultivate  the  military  art  of  handling  and  using  thenn  in 
defence  of  the  people  and  the  State.  This  right  does  not  extend 
to  strange  and  unwonted  weapons,  nor  to  those  unsuited  for 
warlike  purposes,  nor  to  the  carriage  of  any  arms  whatever 
in  a  tumultuous  manner. 

Rem.  The  public  peace  may  also  be  endangered  by  the  secret 
carriage  of  deadly  weapons,  both  by  stimulating  their  possessor 
to  engage  in  conflicts  from  which  he  would  otherwise  refrain,  and 
by  misleading  his  antagonists  into  encounters  which  they  would 
have  avoided  if  his  weapons  had  been  openly  displayed.  On 
these  grounds  the  possession  of  concealed  weapons  is  often  pro- 
hibited by  statute,  and  punished  as  a  crime. 

Read:  4  B1.  Com.,  p.  149; 

Desty,  Criminal  Law,  §§  92-92  b; 
Clark  and  Marshall,  Criminal  Law,  §  422; 
Bishop,  Statutory  Crimes,  §§  781-801; 
Wharton,  Criminal  Law,  §  1557; 
McClain,  Criminal  Law,  §§  1029-1039. 


Article  II 

OF    CRIMES    AGAINST    PUBLIC    POLICY 

§  502.     Of  Public  Nuisances. 

Crimes  against  public  policy  are  those  by  which  the  decency, 
morals,  or  convenience  of  the  public  are  assailed.  Many  of 
these  offences  are  classed  under  the  head  of  Public  Nuisances. 
A  public  miisance  is  any  action  or  omission  which  unlawfully 
annoys  the  public,  and  does  not  belong  to  any  other  class  of 
crimes.  Hence  this  name  embraces  many  species  of  injuries 
to  the  public  welfare  which  do  not  break  the  public  peace,  or 
interrupt  the  course  of  public  trade,  or  impair  the  public  health, 
or  obstruct  the  administration  of  public  justice,  yet  which 
public  policy  compels  the  State  to  endeavor  to  prevent  by  affix- 
ing penalties  to  their  commission.  Among  them  are  the  follow- 
ing: (1)  Obstructing  public  highways  or  navigable  waters; 
(2)  The  illicit  sale  of  intoxicating  liquors;  (3)  Keeping  a 
public  gaming-house;  (4)  Keeping  a  bawdy-house,  or  house 
of  ill-fame ;  (5)  Keeping  a  disorderly  house,  or  house  to  which 
people  resort  to  the  disturbance  of  the  neighborhood ;   (6)  Public 


§  503       CRIMES   AGAINST  THE  PUBLIC  WELFARE  569 

drunkenness;  (7)  Public  lewdness;  (8)  Wilful  exposure  of  the 
person  in  a  public  place;  (9)  Immoral  exhibitions;  (10)  Dis- 
tribution of  obscene  books  or  pictures;  (11)  Eavesdropping; 
(12)  Public  scolding  and  vituperation;  (13)  Public  idleness 
and  vagrancy;    (14)  Violation  of  the  Sunday  Laws. 

Rem.  These  various  nuisances  and  others  of  the  class  are 
public  only  when  committed  in  a  public  place,  or  when  they 
affect  three  or  more  persons  or  families,  and  are  in  their  nature 
calculated  to  injure  all  who  come  within  the  sphere  of  their  influ- 
ence. The  same  actions  and  omissions,  when  not  public,  are 
sometimes  made  penal  offences  by  the  law  on  account  of  their 
corrupting  tendency  in  reference  to  individuals,  and  through 
them  to  the  pul)lic.  Such  are  many  provisions  of  the  licjuor  laws, 
the  laws  against  gaming,  and  those  forbidding  other  immoral 
practices. 

Read:  4  Bl.  Com.,  pp.  63-6.5,  167-175; 
Hawley,  Criminal  Law,  pp.  291-294; 
Desty,  Criminal  Law,  §§  101-103  c,  105-112  a,  114-115  6,  117-117h, 

121-122  (i; 
May,  Law  of  Crimes,  §§  171,  178-182; 
Clark  and  Marshall,  Criminal  Law,  §§  427,  449-456,  457,  465-470, 

472,  473; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §  115; 
Kennoy,  Criminal  Law,  pp.  ,308-312; 
1  Ru.ssell  on  Crimes,  pp.  731-879,  929-943; 
Archbold,  Criminal  Procedure,  pp.  146.3-1466,  1751-1806; 

1  Bishop,  Criminal  Law,  ^  49.5-508,  .530-532  a.  1071-1151; 

2  Bishop,  Criminal  Law,  §§  949  a-970,  1188-1190,  1264-1287; 
Bishop,  Statutory  Crimes,  §§  844-1139; 

Wharton,  Criminal  Law,  §§  1410-1.532; 

McClain,  Criminal  Law,  §§  1133-1145,  1156-1158,  1169-1326. 


§  503.     Of  Blasphemy  and  Profanity. 

B/a.'iplirmi/  is  any  reproach,  oral  or  written,  wilfully  ca.st 
upon  the  Deity,  his  name,  attributes,  or  religion.  Any  words 
calculated  and  designed  to  impair  or  destroy  the  reverence, 
respect,  and  confidence  due  to  God  as  the  creator,  governor,  and 
judge  of  the  world,  —  such  as  a  denial  of  His  being  or  providence, 
or  any  malicious  scoffing  at  the  Holy  Scriptures  exposing  them 
to  contempt  and  ridicule,  or  any  other  declarations  which  tend 
to  subvert  religion  and  piety,  are  blasphemy.  Projnnifi/  con- 
sists in  the  use  of  words  which  import  an  imprecation  of  future 


570  ELEMENTARY  LAW  §  504 

divine  vengeance,  whether  or  not  the  name  of  the  Deity  is  ac- 
tually employed. 

Rem.  Three  distinct  views  are  taken  by  different  systems  of 
law  as  to  the  nature  of  these  crimes.  According  to  one  view  they 
are  offences  against  religion,  and  especially  ('hristianity  as  a  part 
of  the  law  of  the  land ;  and  therefore  are  punishable  when  uttered 
in  the  presence  of  any  number  of  people,  be  they  few  or  many,  and 
with  or  without  their  consent.  According  to  another  view  they 
are  injurious  to  the  public  only  when  spoken  or  published  to  three 
or  more  persons,  and  in  such  a  manner  as  to  constitute  a  public 
nuisance.  According  to  the  third  view  if  delivered  solely  to  par- 
ties who  consent  to  read  or  hear  them,  and  do  not  tend  to  create 
a  disturbance  of  the  public  peace,  they  are  not  crimes.  These 
differences  of  view  are  traceable  in  the  interpretations  given  by 
courts  of  the  same  State  to  the  same  proliibitory  rule,  at  different 
periods  of  time. 

Read:  4  Bl.  Com.,  pp.  59,  60; 

Desty,  Criminal  Law,  §§  116-116  a; 

May,  Law  of  Crimes,  §§  192-194; 

Clark  and  Marshall,  Criminal  Law,  §§  457,  471; 

2  Bishop,  Criminal  Law,  §§  73-84; 

McClain,  Criminal  Law,  §§  1159,  1160. 


§  504.     Of  Bigamy. 

Bigamy  consists  in  the  contracting  of  a  new  marriage  during 
the  continuance  of  a  prior  lawful  marriage  relation.  The 
prior  marriage  relation  must  have  been  valid  in  law,  or  if  void- 
able it  must  not  have  been  avoided,  and  must  not  have  been 
dissolved  either  by  death  or  divorce.  According  to  the  laws 
of  some  States  the  second  marriage  must  have  been  so  contracted 
that  it  would  have  been  valid  had  the  prior  marriage  relation 
not  been  then  subsisting;  in  other  States  the  mere  performance 
of  the  second  marriage  ceremony,  whether  or  not  the  marriage 
relation  could  have  been  created  by  it,  is  sufficient.  Again,  in 
some  States  it  is  held  that  cohabitation  under  the  second  marriage 
must  have  taken  place;  in  other  States,  it  is  regarded  as  un- 
necessary. A  marriage  otherwise  bigamous  is  none  the  less  so 
because  the  parties  entered  into  it  under  a  bona  fide  mistake  of 
law  as  to  their  right  to  marry;  but  a  mistake  of  fact  as  to  the 
continuance  of  the  former  marriage  relation,  in  cases  where 
the  death  of  the  other  party  to  it  may  have  been  lawfully  pre* 


§  505      CRIMES  AGAINST  THE  PUBLIC  WELFARE         571 

sumed,  —  as  from  his  or  her  seven  years'  absence  unheard  of, — 
rebuts,  in  some  States,  the  criminal  intent. 

Rem.  The  guilt  of  bigamy  attaches  to  both  parties  if  they 
knew,  or  are  by  law  presumed  to  know,  of  the  existence  of  the 
prior  marriage  relation ;  but  if  the  unmarried  party  is  innocently 
ignorant  thereof  only  the  married  party  is  responsible.  Local 
statutes  introduce  various  qualifications  into  this  crime,  and  cer- 
tain of  them  make  the  subsequent  cohabitation  of  the  parties  at 
any  time  or  place,  under  the  color  of  the  marriage,  a  separate 
Oifence. 

Read:  4  Bl.  Com.,  pp.  163-165; 

Hawley,  Criminal  Law.  pp.  270-276; 

De.sty,  Criminal  Law.  §§  89-89  y; 

May,  Law  of  Crimes,  §  196; 

Clark  and  Marshall,  Criminal  Law,  §§  458,  459; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §§  116,  117; 

Kenney,  Criminal  Law,  pp.  286-292; 

1  Ru.ssell  on  Crimes,  pp.  659-716; 

Archbold,  Criminal  Procedure,  pp.  1807-1817; 

Bishop,  Statutory  Crimes,  §§  577-613; 

Wharton,  Criminal  Law,  §§  1682-1715; 

McClain,  Criminal  Law,  §§  1071-1085. 


§  505.     Of  Criminal  Sexual  Acts. 

Sexual  acts  are  cither  acts  according  to  nature  or  acts  con- 
trary to  nature.  Sexual  art.s-  arcnrdiug  to  nature  are  regulated 
by  law  in  the  interest  of  social  order,  and  to  promote  the  pri- 
mary object  of  sexual  rclati(Mis,  which  is  the  procreation  and 
education  of  children.  Sexual  nets  contrary  to  nat)trc  the  law 
forbids  as  heinous  offences  again.st  decency,  and  dangerous  to 
the  health  of  present  and  future  generations.  In  the  regula- 
tion of  natural  sexual  acts  the  law  conforms  to  the  theories  and 
instincts  current  in  the  State  in  reference  to  the  proper  rela- 
tions between  nu>n  and  women.  The  princijiles  recognized  by 
modern  civilization  confine  such  acts  to  men  and  women  of 
a  certain  maturity  of  development,  and  united  together  in  a 
permanent  sexual  relation ;  and  forbid,  directly  or  indirectly, 
all  sexual  acts  outside  of  such  relation  or  between  immature 
persons,  and  all  acts  which  tend  to  defeat  the  procreative  end 
for  which  such  acts  are  by  nature  ordained.  These  principles 
find   expression    in    ininurous   laws,    written   or   unwritd-n,  |)ro- 


572  ELEMENTARY  LAW  §  505 

hibiting  the  various  forms  of  the  following  crimes :  (1)  Adultery ; 
(2)  Fornication;  (3)  Incest;  (4)  Miscegenation;  (5)  Abortion. 
Adultery  and  Fornication  consist  in  natural  sexual  intercourse 
between  a  man  and  woman  who  are  not  lawfully  married  to 
each  other.  The  line  of  demarcation  between  these  two  crimes 
is  differently  drawn  in  different  States.  In  some  States  adultery 
is  the  voluntary  sexual  intercourse  of  a  married  woman  w^ith 
any  man  who  is  not  her  husband;  whether  the  man  is  guilty 
of  adultery  or  fornication  being  determined  by  further  pro- 
visions of  the  local  law.  In  other  States  adultery  is  the  volim- 
tary  sexual  intercourse  of  any  married  person  with  any  man 
or  woman  who  is  not  his  or  her  lawful  wife  or  husband ;  the 
married  .person  being  guilty  of  adultery,  and  the  unmarried 
person  of  fornication  only.  In  still  other  States  adultery  is 
the  unlawful  sexual  intercourse  of  any  married  person  with 
any  person  of  the  opposite  sex;  the  single  as  well  as  the  mar- 
ried being  held  guilty  of  adultery.  Fornication,  in  the  different 
States,  includes  all  cases  of  unlawful  sexual  intercourse  which, 
under  the  local  law,  are  not  adultery.  When  fornication  is 
committed  between  a  mature  male  and  a  female  whom  the  law 
regards  as  immature,  and  therefore  incapable  of  giving  legal 
consent  to  the  act  whatever  be  her  real  age,  the  crime  is  aggra- 
vated to  a  high  degree,  and  frequently  punished  as  a  rape. 
Incest  is  voluntary  sexual  intercourse  between  a  man  and  a 
woman  who  are  related,  and  know  themselves  to  be  related, 
by  blood  or  affinity  within  such  degrees  that  their  marriage 
to  one  another  would  be  unlawful.  The  fact  that  they 
have  been  formally  married  to  each  other  does  not  palliate 
their  crime.  Miscegenation  is  the  voluntary  sexual  inter- 
course of  a  man  and  woman  who,  on  account  of  their  racial 
differences,  are  forbidden  by  the  law  to  marry.  In  some  States 
parties  may  commit  this  crime  merely  by  entering  into  an 
apparent  marriage  relation.  Abortion  is  the  wilful  destruction 
of  a  foetus  in  the  womb  of  its  mother,  or  its  premature  expul- 
sion from  her  womb,  under  circumstances  which  render  the  act 
unjustifiable  in  law.  The  law  permits  the  destruction  or  pre- 
mature expulsion  of  a  foetus  when  it  is  necessary  in  order  to 
save  the  life  of  the  mother.  It  also  permits  the  premature  ex- 
pulsion when  it  affords  the  only  hope  of  life  for  the  fhild.     An 


§  506      CRIMES   AGAINST  THE   PUBLIC  WELFARE  573 

abortion  can  be  committed  by  the  mother  herself,  or  by  some 
other  person  witJi  or  without  her  consent;  and  it  is  immaterial 
whether  the  mother  is  married  or  single,  or  whether  the  child 
is  legitimate  or  illegitimate. 

Rem.  Sexual  acts  contrary  to  nature  are:  (1)  Sexual  inter- 
course of  a  man  with  another  man  -per  anum;  (2)  Sexual  inter- 
course of  a  man  with  a  woman  -per  anuvi;  (3)  Sexual  intercourse 
in  any  manner  of  a  man  or  woman  with  a  beast,  lo  the  first 
and  second  of  these  acts  the  name  of  "sodomy"  was  anciently 
applied,  and  this  is  still  its  technical  meaning,  though  it  is  often 
employed  to  denote  also  the  third.  The  term  " l^>'f]f/er>j"  is 
sometimes  used  in  the  same  sense.  Bestiality  is  a  word  express- 
ing only  the  third.  These  crimes  have  also,  at  certain  periods, 
been  treated  as  felonies  and  punished  with  death. 

Read:  Hawley,  Criminal  Law,  pp.  276-281,  28&-291; 

Desty,  Criminal  Law,  §§  56-00,  88-88  c,  90-90  6,  113-113  b; 

May,  Law  of  Crimes,  §§  195,  200-203; 

Clark  and  Marshall,  Criminal  Law,  §§  289-292,  460-463; 

Clark,  Criminal  Law  (TitTany  Ed.),  §§  118-127,  129-131; 

Kenney,  C'riminal  Law,  pp.  155,  156,  292-296; 

3  Russell  on  Crimes,  pp.  249-252; 

Archbold,  Criminal  Procedure,  pp.  951-982,  1015-1026,  1818-1-828; 

2  Bishop,  Criminal  Law,  §§  1191-1196; 

Bishop,  Statutory  Crimes,  §§  6.53-780; 

Wharton,  Criminal  Law,  §§  579,  .580,  592-602,  1717-1754; 

McClain,  Criminal  Law,  §§  1086-1099,  1120-1132,  1146-1155. 


Article  III 

OF    CRIi\fES    AGAINST    PUBLIC    TRADE 
§  506.     Of  Cheating. 

Clicaliiirj  is  the  perpetration  of  a  fraud  by  the  false  u.se  of 
some  token  or  .symbol  in  which,  according  to  the  customs  of 
society,  the  public  are  expected  to  place  confidence.  Mere 
words,  whether  spoken  or  written,  however  false  they  may  be, 
do  not  amount  to  a  cheat,  for  no  one  is  obliged  to  accept  the 
verbal  statements  of  another.  But  false  weights  and  measures, 
loaded  dic-e,  worthless  bank-bills,  forged  notes  or  checks  or 
conveyances,  debased  coin,  adulterated  commodities,  and  the 
like,  when  so  employed  as  to  deceive  a  person  exercising  com- 
mon prudence  and  trusting  (o  their  genuineness  and  their  con- 
formity to  the  established  standards,  involve  a  breach  of  faith 


574  ELEMENTARY  LAW  §  507 

toward   the   entire   public   in  reference   to   matters   on   which 

they   are  compelled    to  rely;  and  which   must,  therefore,   be 

protected   against    fraudulent  abuse    by  penalties    sufficiently 
severe. 

Rem.  Public  trade  is  the  general  commercial  intercourse  of 
the  citizens  of  the  State  with  one  another.  Its  preservation 
and  prosperity  depend  upon  their  mutual  confidence,  and  the 
maintenance  of  fair  and  unrestricted  competition.  For  the 
convenient  prosecution  of  commercial  intercourse  certain  in- 
strumentalities are  necessary,  —  such  as  standards  of  weight, 
measure,  and  value,  or  specific  names  for  commodities  indica- 
ting their  character  and  quality.  In  these  the  public  voluntarily 
put  faith,  and  unless  this  faith  were  justified  trade  would  be 
impossible.  To  compel  all  persons  to  respect  these  instrumen- 
talities the  law  forbids  any  abuse  of  them  for  purposes  of  fraud, 
and  punishes  it  as  the  crime  of  cheating. 

Read:  4  Bl.  Com.  pp.  157,  158; 

Desty,  Criminal  Law,  §§  148-148  j; 

May,  Law  of  Crimes,  §§  318-320; 

Clark  and  Marshall,  Criminal  Law,  §§  350-354; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §§  101,  102; 

2  Bishop,  Criminal  Law,  §§  141-168; 

Wharton,  Criminal  Law,  §§  1116-1129; 

McClain,  Criminal  Law,  §§  660-664. 


§  507.     Of  Unlawful  Interference  with  Competition  in  Trade. 

Interference  with  competition  in  trade  may  prejudice  two 
rights:  (1)  The  right  of  individuals  to  enter  into  competition 
with  others,  in  order  to  benefit  by  the  profits  to  be  derived 
from  trade;  (2)  The  right  of  the  public  to  the  advantages  in 
(|uality  and  cheapness  which  competition  may  tend  to  secure. 
Interference  with  competition  consists  in  any  measure  which 
debars  others  from  embarking  in  commercial  enterprises,  or 
restricts  the  operations  of  those  who  are  already  engaged  therein, 
in  such  a  manner  or  to  such  an  extent  as  may  prevent  the  public 
from  obtaining  fair  supplies  at  the  lowest  price.  What  inter- 
ference is  thus  prejudicial  is  determined  largely  by  current 
economic  theories;  and  the  prohibitions  of  the  law  concerning 
them  consequently  vary  from  one  age  to  another.  The  fol- 
lowing practices  have  from  time  to  time  been  regarded  as  such 
interference,  and  have  been  forbidden  and  punished  as  crimes: 


§  508       CRIMES   AGAINST  THE   PUBLIC  WELFARE  575 

(1)  Monopolies,  or  the  exercise  by  royal  license  of  the  sole 
right  to  carry  on  a  trade  or  sell  a  certain  commodity ;  (2)  Fore- 
stalling, Regrating,  and  Engrossing,  which  are  different  oppres- 
sive modes  of  acquiring  control  over  the  market,  especially 
over  the  supply  of  provisions;  (3)  Combinations  to  raise  the 
price  of  goods  or  labor. 

Rem.  In  this  country  it  has  been  the  general  policy  of  the  law 
to  allow  competition  to  regulate  itself,  unless  the  interference  with 
it  has  proceeded  to  such  acts  of  violence  or  intimidation  as  to  dis- 
turb the  public  peace,  or  seriously  invade  the  right  of  personal 
liberty.  The  fact  that  merchant  princes  may  become  as  danger- 
ous despots  as  if  their  dominion  were  pohtical  rather  than  com- 
mercial, and  that  labor  unions  may  be  as  formidable  a  menace  to 
the  safety  and  progress  of  the  State  as  any  treasonable  conspir- 
acy, has  recently  obtained  some  recognition  and  led  to  the  enact- 
ment of  laws  against  certain  combinations,  whether  of  person  or 
property,  which  inflict  or  threaten  injury  to  the  commercial  in- 
terests of  the  State.  These  laws,  contained  in  Acts  of  Congress 
and  the  statutes  of  individual  States,  are  as  yet  of  narrow  scope 
and  of  no  great  practical  efficiency. 

Read:  4  Bl.  Com.,  pp.  154-157,  158-160; 
Desty,  Criminal  Law,  §  104; 
May,  Law  of  Crimes,  §  177; 
Clark  and  Marshall,  Criminal  Law,  §§  474-481; 
1  Russell  on  Crimes,  pp.  475,  476; 
1  Bishop,  Criminal  Law,  §§  508a-529; 
Wharton,  Criminal  Law,  §§  1849-1851. 


Article  IV 

OF    CRIMES    AG.\INST    PUBLIC    HEALTH 

§  608.     Of  the  Public  Health. 

Piihlir  liea/th  is  a  resultant  from  the  health  of  the  individuals 
of  whom  the  public  is  composed,  and  hence  whatever  imperils 
the  health  of  individuals  endangers  that  of  the  public.  Against 
injuries  to  healtli  the  law  hjis  always  endeavored  to  protect 
private  persons  by  giving  them  j)reventive  and  compensatory 
legal  remedies,  and  authorizing  them  to  suppress  the  cause  of 
injury  whenever  they  would  not  thereby  disturb  the  public 
peace.  It  has  also  recognized  as  j)ublic  wrongs  those  actions 
and   omissions    which    might    directlv,    and    at    the   same    time. 


576  ELEMENTARY  LAW  §  509 

impair  the  health  of  many  individuals.  But  the  more  recent 
discovery  that  every  diseased  person  may  be  a  center  of  in- 
fection, from  which  morbific  influences  may  radiate  imper- 
ceptibly and  unpreventably  throughout  entire  communities, 
has  given  to  the  public  health  a  wider  aspect,  and  tended  to 
identify  it  more  closely  with  that  of  every  individual.  For  this 
reason  public  health  is  now  regarded  as  invaded  by  numerous 
acts  which  terminate  on  single  persons,  and  only  through  their 
secondary  consequences  affect  the  public. 

Rem.  Injuries  to  public  health  were  formerly  classed  among 
public  nuisances,  and  only  to  those  actions  and  omissions  which 
corresponded  with  the  definition  of  a  public  nuisance,  as  a  wrong 
affecting  several  individuals  at  once,  were  their  prohibitions  and 
penalties  applied.  All  such  wrongs  may  still  be  prosecuted  and 
punished  as  public  nuisances,  and  therefore  crimes  under  the 
unwritten  law.  The  injuries  which  reach  the  public  indirectly 
through  their  primary  effect  upon  the  individual  are  not  public 
nuisances,  as  legally  defined,  and  are  ordinarily  prohibited  by 
written  law. 

Read:  1  Bishop,  Criminal  Law,  §§  489-494. 


§  509.     Of  Offences  against  Public  Health. 

Among  the  numerous  actions  and  omissions  punishable  as 
crimes  against  the  'public  health  are  these:  (1)  The  pollution 
of  waters  likely  to  be  used  for  drinking  or  domestic  purposes; 
(2)  The  production  of  nauseating  odors,  offensive  vapors,  or 
alarming  noises;  (3)  The  sale  or  distribution  of  unwholesome 
provisions,  drugs,  and  other  articles;  (4)  The  maintenance  of 
dangerous  pitfalls,  explosives,  machinery,  or  animals;  (5)  The 
exposure  of  other  persons  to  a  contagious  disease;  (6)  The 
breach  of   quarantine   regulations. 

Rem.  As  the  protection  of  public  health  is  one  of  the  most 
important  duties  of  the  administrative  officers  of  the  State,  and 
often  requires  energetic  and  immediate  action,  the  rules  forbid- 
ding these  and  other  similar  offences  are  found  not  merely  in  stat- 
utes, but  in  municipal  ordinances,  the  regulations  established  by 
local  boards  of  health,  and  the  orders  issued  from  time  to  time 
by  the  heads  of  police  departments ;  all  of  which  have  within 
the  area  of  their  jurisdiction  the  same  force  as  the  general 
statute  law. 


§  510       CRIMES   AGAINST  THE  PUBLIC   WELFARE         577 

Read:  4  Bl.  Com.,  pp.  161-162; 

Desty,  Criminal  Law,  §§  118-120  a; 
Clark  and  Marshall,  Criminal  Law,  §§  445-448; 
1  Russell  on  Crimes,  pp.  269-276; 
Wharton,  Criminal  Law,  §§  1433-1441. 


Article  V 

OF    CRIMES    AGAINST    PUBLIC    JUSTICE 

§  510.     Of  Official  Negligence. 

Crimes  against  public  justice  are  those  actions  and  omissions 
by  which  the  course  of  legal  proceedings  is  perverted,  impeded, 
or  prevented.  Some  of  these  crimes  can  be  committed  only  by 
officers  of  the  law  to  whom  the  administration  of  public  justice 
is  confided.  Others  may  be  perpetrated  by  the  litigating  parties ; 
and  still  others  by  persons  who  have  no  legitimate  interest  in 
the  proceedings.  The  principal  crimes  which  public  officers 
can  commit  in  their  official  capacity  arc  three:  (1)  Official 
Negligence;  (2)  Oppression;  and  (3)  Extortion.  Official 
negligence  is  the  voluntary  failure  of  a  sheriff,  coroner,  or  other 
minor  civil  officer,  to  discharge  those  public  duties  which  are 
imposed  upon  him  by  the  law.  This  failure  may  consist  in 
the  refusal  to  accept  the  office  to  which  he  has  been  elected  or 
appointed,  unless  the  law  leaves  him  an  option  in  the  matter; 
or  in  the  careless  or  fraudulent  performance  of  the  acts  pertain- 
ing to  his  office;  or  in  his  neglect  of  some  particular  official 
duty.  An  officer  dc  facto,  equally  with  one  de  jure,  may  be 
guilty  of  this  crime. 

Rem..  The  criminal  liability  for  official  negligence  does  not 
depend  upon  its  consequences  to  other  })ersons,  nor  is  it  dimin- 
ished by  the  fact  that  the  officer  was  mistaken  either  as  to  the 
law  or  as  to  the  circumstances  in  reference  to  which  his  action 
was  refjuircd.  But  where  the  performance  of  the  duty  was  pr.u- 
tically  impossible,  or  would  have  been  attended  with  sucli  a  per- 
sonal risk  that  men  of  ordinary  conrage  and  agility  conld  not 
have  been  expectetl  to  incur  it,  its  neglect  is  e\cusal)le.  Legisla- 
tors, judges  of  conrts  of  record,  and  such  liit/li  officers- of  goveru- 
meut  US  are  entrnstcd  with  important  discretionary  dnties,  are  not 
chargeable  with  this  crime;  but  when  guilty  of  offences  pertain- 
ing to  their  office,  of  which  the  law  will  take  any  notice  whatever, 
are  subject  to  impeachment  or  to  proceedings  for  contempt. 

37 


578  ELEMENTARY  LAW  §§511,  512 

Read:  4  Bl.  Com.,  p.  140; 

Desty,  Criminal  Law,  §§  82-83  a,  86-86  «; 

2  Greenleaf,  Evidence,  §§  580-599; 

May,  Law  of  Crimes,  §  142  a; 

Clark  and  Marshall,  Criminal  Law,  §  434 ; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §§  145-147; 

Kenney,  Criminal  Law,  pp.  313,  314; 

1  Russell  on  Crimes,  §§  416-422,  428,  429; 
Archbold,  Criminal  Procedure,  pp.  1364-1368; 

2  Bishop,  Criminal  Law,  §§  971-982; 
Wharton,  Criminal  Law,  §§  1563-1591; 
McCIain,  Criminal  Law,  §§  904-913. 


§  511.     Of  Oppression. 

Oppression  is  the  tyrannical  partiality  of  a  public  officer  in 
the  administration  of  his  office.  Undue  severity  inflicted  upon 
persons  in  their  custody  by  jailers,  constables,  and  other  min- 
isterial officers ;  the  improper  exercise  of  official  authority  over 
persons  temporarily  subjected  to  it,  in  order  to  compel  them 
to  do  some  act  which  but  for  the  duress  they  never  would  have 
consented  to  perform;  the  refusal  to  discharge  a  duty  from  a 
motive  of  revenge,  or  except  upon  compliance  with  conditions 
which  the  officer  had  no  right  to  impose,  —  are  instances  of 
the  forms  which  this  crime  may  assume. 

Rem.  To  constitute  this  crime  in  a  judicial  officer  the  acts  of 
partiality  must  be  corrupt,  and  proceed  from  dishonest  motives, 
as  from  fear  or  favor,  and  not  from  a  mere  error  of  judgment 
or  mistake  of  law. 

Read:  4  Bl.  Com.,  p.  141; 
May,  Law  of  Crimes,  §  142 ; 
Clark  and  Marshall,  Criminal  Law,  §  434 ; 
Kenney,  Criminal  Law,  pp.  313,  314; 
1  Russell  on  Crimes,  p.  416; 
McClain,  Criminal  Law,  §§  914-919. 

§  512.     Of  Extortion. 

Extortioyi  is  the  corrupt  demanding  or  taking  by  an  officer, 
under  color  of  his  office,  of  any  fee  which  is  not  due  to  him,  or 
which  exceeds  what  is  lawfully  due.  The  thing  extorted  must 
be  taken  as  a  jee  pertaining  to  the  office,  —  as  by  claiming  a 
reward  where  the  service  is  by  law  made  gratuitous;  or  by 
demanding  a  greater  amount  than  the  law  prescribes  for  the 


§  513      CRIMES   AGAINST  THE  PUBLIC  WELFARE  579 

service;  or  by  refusing  to  perform  the  service  until  the  fee  is 
paid  except  in  cases  where  the  law  entitles  the  officer  to  be 
paid  in  advance.  The  motive  must  also  be  corrupt;  for  where 
the  reward  is  paid  voluntarily  for  real  benefits  conferred  by 
extraordinary  exertions  of  the  officer,  or  where  the  officer  acts 
in  good  faith  under  a  mistake,  there  is  no  extortion. 

Rem.  Any  officer,  whether  a  justice,  sheriff,  attorney,  tax 
collector,  or  clerk  of  a  court,  and  whether  de  jure  or  de  facto, 
may  be  guilty  of  this  crime.  Extortion  may  be  committed 
against  the  State,  or  a  municipal  corporation,  as  well  as  against 
a  private  individual. 

Read:  4  Bl.  Com.,  p.  141; 

Desty,  Criminal  Law,  §§  84-85  a; 

May,  Law  of  Crimes,  §  141; 

Clark  and  Marsliall,  Criminal  Law,  §  434; 

1  Russell  on  Crimes,  pp.  423-428; 
Archbold,  Criminal  Procedure,  pp.  1368-1375; 

2  Bishop,  Criminal  Law,  §§  390-408. 

§  513.     Of  Compounding  Offences. 

The  principal  crimes  against  public  justice  which  can  be 
committed  by  persons  other  than  the  officers  of  the  law  are: 
(1)  Compounding  Offences;  (2)  Falsifying  Records;  (3)  Bri- 
bery ;  (4)  Obstructing  Process ;  (5)  Escape ;  (6)  Prison-Breach ; 
(7)  Rescue;  (8)  Misprision  of  Felony;  (9)  Receiving  Stolen 
Goods;  (10)  Perjury;  (11)  Subornation  of  Perjury;  (12) 
Embracery;  (13)  Barratry;  (14)  Maintenance;  (15)  Cham- 
perty. Compounding  is  the  agreement  of  the  injured  party  with 
the  wrongdoer  not  to  prosecute  him  for  his  crime,  in  consideration 
of  some  pecuniary  advantage.  The  pecuniary  advantage  moving 
to  the  compounder  may  be  a  payment  in  money;  or  the  res- 
toration of  stolen  goods ;  or  an  official  service  having  a  pecuniary 
value ;  or  any  other  matter  from  which  the  compounder  could 
derive  a  substantial  benefit.  But  the  intent  with  which  it  is 
given  and  received  must  be  the  protection  of  the  criminal  from 
punishment,  though  whether  this  design  be  ultimately  realized 
or  not   is   of   no   consequence. 

Rem.  The  gist  of  this  offence  is  the  concealment  of  the  crime, 
and  the  screening  of  the  criminal  from  prosecution,  to  the  det- 
riment of  the  public.    Where  the  crime  is  a  felony,  or  a  raisde- 


580  ELI'IMENTARY  LAW  §§  514,  515 

meanor  prejudicial  to  the  public,  compounding  it  is  a  concurrence 
in  tiie  public  injury,  and  is  properly  prohibited.  But  where  the 
offence  attacks  only  private  interests,  ar^d  is  of  no  great  enor- 
mity, these  settlements  between  the  parties  are  now  generally 
permitted. 

Read:  4  Bl.  Com.,  pp.  132-134,  136; 

Hawley,  Criminal  Law,  pp.  257,  258; 

Desty,  Criminal  Law,  §§  10-10  b,  74  d; 

Clark  and  Marshall,  Criminal  Law,  §  438; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §  141; 

1  Russell  on  Crimes,  pp.  411-415; 

Archbold,  Criminal  Procedure,  pp.  1852-1854; 

1  Bishop,  Criminal  Law,  §§  709-715; 

Wharton,  Criminal  Law,  §  1559; 

McClain,  Crimiaal  Law,  §§  938-940. 


S  614.     Of  Falsifying  Records. 

Falsifijing  records  is  the  wilful  and  unauthorized  removal, 
suppression,  or  alteration  of  any  public  record.  The  law  gives 
the  highest  credit  to  its  public  official  records,  some  of  which 
import  absolute  verity  and  cannot  be  contradicted  by  any  other 
evidence.  The  destruction  or  concealment  of  these  records, 
or  any  alteration  therein,  not  made  under  competent  authority 
and  for  the  purpose  of  properly  correcting  errors,  is  therefore 
treated  as  a  crime  of  great  magnitude,  and  formerly  was  pun- 
ishable by  death. 

Rem.  By  some  authorities  this  crime  is  held  to  be  a  species  of 
forgery,  but  in  reality  it  differs  therefrom  in  two  particulars: 
(1)  That  no  specific  intent  to  defraud  other  persons  is  of  the 
essence  of  this  crime,  as  it  is  of  the  crime  of  forgery;  and  (2) 
That  the  record  falsified  need  not  import  a  legal  obligation,  as 
one  which  is  the  subject  of  forgery  must  do.  At  the  same 
time  it  is  true  that  many  falsifications  of  public  records  would 
be  offences  of  a  dual  aspect,  and  fall  also  within  the  definition 
of  a  forgery,  —  such  as  an  alteration  in  a  judgment  record 
changing  the  obligations  of  the  parties,  or  in  the  registration  of 
a  deed  giving  to  one  a  color  of  title  to  land  which  was  in  truth 
the  property  of  another. 

Read:  4  Bl.  Com.,  pp.  127,  128. 

§  515.     Of  Bribery. 

Bribery  is  the  giving  or  receiving  of  any  valuable  thing  in 
order  that  the  receiver  may  be  corruptly  influenced  thereby 


§  516       CRIMES   AGAINST  THE  PUBLIC  WELFARE  581 

in  the  discharge  of  some  pubUc  duty.  This  crime  is  committed 
equally  by  the  giver  and  the  receiver,  provided  both  concur  in 
the  corrupt  purpose  of  the  gift ;  and  is  comj)lete  when  the  gift 
is  offered  and  received,  although  official  conduct  may  not  be 
actually  influenced  thereby.  The  duties  which  it  is  designed 
to  pervert  need  not  be  judicial  duties,  nor  even  those  connected 
with  a  permanent  office;  the  purchase  of  votes,  or  the  pro- 
curement of  a  public  appointment  by  means  of  an  undue  re- 
ward, falling  within  the  definition  of  this  crime. 

Rem.  The  offer  to  give  or  to  receive  a  bribe,  although  the 
offer  is  refused,  is  an  attempt  at  bribery,  but  is  of  so  dangerous 
a  nature  that  it  is  constantly  t'lassed  with  and  punished  in  the 
same  manner  as  bribery  itself. 

Read:  4  Bl.  Com.,  pp.  139,  140; 

Hawley,  Criminal  Law,  pp.  258-260; 
Desty,  Criminal  Law,  §§  71-71  c; 
May,  Law  of  Crimes,  §  140; 
Clark  and  Marshall,  Criminal  Law,  §  432; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §  144; 
Kenney,  Criminal  Law,  pp.  312,  313; 

1  Russell  on  Crimes,  pp.  433-135,  443-461 ; 
Archhold,  Criminal  Procedure,  pp.  1663-1666; 

2  Bishop,  Criminal  Law,  §§  84a-89; 
Wharton,  Criminal  Law,  §§  1857-1859; 
McClain,  Criminal  Law,  §§  890-903. 

§  616.     Of  Obstructing  Process. 

Obdrurting  process  consists  in  any  act  which  is  designed  to 
and  actually  does  prevent  or  hinder  the  complete  performance 
of  their  duties  by  the  officers  of  the  law.  Any  person  who  is 
clothed  with  public  authority  for  any  purpose,  and  who  is  en- 
deavoring to  carry  into  effect  by  proper  means  the  mandate 
of  the  law,  is  an  officer  within  the  meaning  of  this  crime;  and 
every  person  who  voluntarily  offers  any  obstruction  either  to 
the  performance  of  his  duty  by  such  officer,  or  to  the  accom- 
plishment of  the  purpose  of  the  law  through  the  discharge  of 
that  official  duty,  is  guilty  of  the  crime  itself.  Thus  to  hinder 
the  service  of  a  suhpoeua  on  a  witness,  and  to  deter  a  subpirnaed 
witness  from  attending  court,  arc  ahke  forms  of  this  oll'ence. 

Rem.  When  the  obstruction  of  process  is  accompanied  by 
force  it  may  become  a  Ijn-ach  of  the  peace.     If  the  forcible  ob- 


582  ELEMENTARY  LAW  §  517 

struction  causes  the  death  of  the  officer  it  will  be  murder,  pro- 
vided his  acts  were  wholly  within  his  authority;  manslaughter, 
if  he  exceeded  or  was  without  authority ;  and  excusable  homicide 
only  if,  without  authority,  he  put  the  life  of  the  resister  into 
hazard  and  the  killing  consequently  was  in  self-defence. 

Read:  4  Bl.  Com.,  p.  129; 
-  Hawley,  Criminal  Law,  pp.  263-266; 
Desty,  Criminal  Law,  §§  76-76  c; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §  135; 

1  Russell  on  Crimes,  pp.  880-883; 
Archbold,  Criminal  Procedure,  pp.  940-942; 

2  Bishop,  Criminal  Law,  §§  1009-1013; 
McClain,  Criminal  Law,  §§  920-929,  937. 


§  617.     Of  Escape:  Prison-Breach:  Rescue. 

Escape  is  the  wrongful  release  from  custody  of  a  person 
who  is  under  lawful  arrest  and  imprisonment.  This  crime 
may  be  committed  by  the  prisoner  himself,  as  where  he  vol- 
untarily flees  from  legal  custody;  or  by  the  officer  or  other 
person  in  whose  custody  he  is,  and  who  intentionally  or  neg- 
ligently permits  him  to  depart.  The  guilt  or  innocence  of  the 
prisoner  is  not  material,  nor  does  the  acquiescence  of  the  officer 
in  whose  custody  he  is  affect  his  liability  for  his  escape.  Prison- 
breach  is  an  aggravated  escape.  It  consists  in  the  forcible 
breaking  out  of  a  lawful  place  of  imprisonment,  by  a  person 
who  is  lawfully  confined  therein,  and  who  by  means  of  such 
breaking  effects  his  escape  therefrom.  The  structure  in  which 
the  prisoner  was  confined  must  be  actually  broken  by  the  prisoner 
himself,  or  by  others  through  his  procurement,  and  either  for 
the  purpose  of  the  escape  or  by  the  force  used  in  escaping.  A 
prisoner  who  departs  through  an  aperture  made  without  his 
consent  is  guilty  of  a  simple  escape  only,  and  not  of  prison- 
breach;  while  one  who  breaks  v^ithout  departing  is  guilty 
of  neither  offence.  To  break  from  prison  through  necessity  — 
as  if  the  building  is  on  fire  —  is  not  a  crime ;  but  the  filthiness 
or  unsanitary  condition  of  the  prison  creates  no  such  necessity. 
Rescue  is  the  act  of  other  persons,  liberating  by  force  a  prisoner 
who  is  known  to  them  to  be  under  lawful  arrest  or  detention. 
All  participants  in  a  rescue  become  guilty  of  the  same  degree 
of  crime  as  that  with  which  the  prisoner  was  charged. 


I  518     CRIMES    AGAINST    THE    PUBLIC    WELFARE        583 

Rem.  A  voluntary  release  by  an  officer  of  a  prisoner  charged 
with  crime  makes  the  officer  a  party  to  the  crime ;  and  if  the  crime 
is  a  felony  the  officer  becomes  an  accessary  after  the  fact,  and 
therefore  a  felon  also.  A  negligent  release  by  an  officer  amounts 
only  to  a  misdemeanor.  An  escape  from  unlawful  arrest  is  not  a 
crime,  nor  is  the  prisoner  responsible  for  any  force  he  may  em- 
ploy in  accomplishing  his  release,  unless  it  exceeds  in  quantity  or 
degree  that  which  was  rendered  necessary  by  the  violence  arrayed 
against  him. 

Read:  4  Bl.  Com.,  pp.  129-132; 

Hawley,  Criminal  Law,  pp.  260-263; 

Desty,  Criminal  Law,  §§  77-81; 

May,  Law  of  Crimes,  §§  159-162; 

Clark  and  Marshall,  Criminal  Law,  §§  435—437; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §§  137-139; 

Kenney,  Criminal  Law,  pp.  314,  315; 

1  Russell  on  Crimes,  pp.  889-928; 
Archbold,  Criminal  Procedure,  pp.  1861-1872; 

2  Bishop,  Criminal  Law,  §§  1064-1106; 
Wharton,  Criminal  Law,  §§  1667-1680; 
McClain,  Criminal  Law,  §§  930-936. 

§  618.     Of  Misprision  of  Felony:  Receiving  Stolen  Goods. 

Misprision  of  Felony  is  the  neglect  of  any  person,  who  knows 
that  a  felony  has  been  or  is  about  to  be  committed,  to  give  such 
information  to  the  proper  authorities  as  may  prevent  the  felony 
or  bring  the  felon  to  justice.  If  such  knowledge  includes  open 
assent  and  encouragement  to  a  future  felony,  or  its  concealment 
aids  in  the  escape  of  a  person  who  is  guilty  of  a  felony  already 
perpetrated,  the  offence  is  not  a  mere  misprision  but  makes  the 
offender  an  accessary. 

Rem.  Receiving  stolen  goods  is  one  form  of  misprision  which 
has  been  specially  prohibited  by  law.  It  consists  in  the  reception, 
from  the  thief  himself,  of  goods  which  are  known  by  the  receiver 
to  have  been  stolen  by  the  person  from  whom  he  received  them, 
for  the  purpose  of  aiding  the  thief  by  their  concealment  or  by 
their  secret  conversion  into  other  pro|)erty.  IV)  receive  stolen 
goods  for  })urposes  of  gain  to  the  receiver  is  a  more  aggravated 
crime.  It  involves  an  assent  to  the  theft,  and  a  voluntary  j)artici- 
pation  in  its  results,  and  is  tiierefore  punished  as  a  separate 
offence. 

Read:  4  Bl.  Com.,  pp.  121,  132,  133; 
Hawley,  Criminal  Law,  pp.  237-241; 
Desty,  Criminal  Law,  §§  9,  147-147  6; 


584  ELEMENTARY  LAW  §  519 

May,  Law  of  Crimes,  §§  324-328; 

Clark  and  Marshall,  Criminal  Law,  §§  380-387,  439; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §§  108,  109,  140; 

Kenney,  Criminal  Law,  pp.  237-239; 

2  Bishop,  Criminal  Law,  §§  1137-1142  a; 

Wharton,  Criminal  Law,  §§  249,  982-1009; 

McClain,  Criminal  Law,  §§  713-719. 


§  519.     Of  Perjury:  Subornation  of  Perjury. 

Perjury  is  the  wilful  giving  of  false  testimony  under  oath, 
before  a  competent  tribunal  upon  a  point  material  to  the  issue. 
Testimony  is  wilfully  false  when  the  person  testifying  deliberately 
misrepresents  the  matter  as  it  lies  in  his  own  mind,  —  as  when 
he  testifies  to  what  he  knows  is  not  true,  or  to  what  he  does  not 
know  to  be  true,  or  to  what  he  believes  to  be  false.  The  essence 
of  this  crime  is  the  corrupt  intention;  for  one  who  states  the 
fact  as  it  really  is,  if  he  believes  that  in  so  doing  he  is  stating 
falsehood,  gives  false  testimony.  But  no  statement,  however 
untrue  in  fact,  if  made  under  a  bona  fide  mistake  is  wilfully 
false,  even  when  such  mistake  is  the  result  of  gross  carelessness 
or  temporary  intoxication.  Testimony  is  given  under  oath 
whenever  the  witness  has  been  sworn  or  affirmed  in  legal  form, 
and  on  a  proper  occasion,  by  an  officer  duly  empowered  to  ad- 
minister such  oaths.  A  competent  tribunal  is  one  which  by  law 
has  cognizance  of  judicial  proceedings;  and  in  some  States 
includes  all  authorities  by  whom  the  truth  of  any  issue  involving 
temporal  disadvantage  may  be  investigated  and  decided.  Tes- 
timony is  upon  a  point  material  to  the  issue  whenever  it  is  cal- 
culated to  influence  the  tribunal  in  its  decision  of  the  issue, 
whether  such  influence  be  direct  or  indirect.  Subornation  of 
perjury  is  the  procuring  of  another  person  to  commit  perjury 
by  inciting,  instigating,  or  persuading  him  to  forswear  himself, 
followed  by  his  actual  commission  of  the  perjury  in  consequence 
of  such  procurement. 

ReTTi.  Both  perjury  and  subornation  derive  their  enormity 
from  the  perversion  of  justice  which  must  ensue,  if  such  grave 
and  solemn  falsehoods  in  judicial  proceedings  were  permitted  to 
pass  unpunished.  False  oaths  on  private  occasions  not  connected 
with  the  administration  of  public  justice,  though  the  oaths  may 
be  required  by  law  for  various  purposes,  are  not,  strictly  speak- 


§§  520,  521      CRIMES    AGAINST    PUBLIC    WELFARE        585 

ing,  perjury;  but  are  often  embraced  by  statute  in  that  crime, 
and  are  always  subject  to  some  form  of  penalty. 

Read:  4  BI.  Com.,  pp.  137-139; 

Hawley,  Criminal  Law,  pp.  245-251; 

Desty,  Criminal  Law,  §§  75-75/; 

May,  Law  of  Crimes,  §§  147-153  a; 

Clark  and  Marshall,  Criminal  Law,  §§  430,  431; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §§  142,  143; 

Kenney,  Criminal  Law,  pp.  280-285; 

1  Russell  on  Crimes,  pp.  293-403 ; 
Archbold,  Criminal  Procedure,  pp.  1714-1751; 

2  Bishop,  Criminal  Law,  §§  1014-1056,  1197-1199; 
Wharton,  Criminal  Law,  §)§  1244-1334; 
McClain,  Criminal  Law,  §§  852-895. 

§  520.     Of  Embracery. 

Embracery  is  the  attempt  to  corruptly  influence  a  jury  in 
the  rendition  of  their  verdict.  Any  influence  which  is  exerted 
by  any  person  whether  himself  a  juror  or  not,  and  either  upon 
a  single  juror  or  upon  the  whole  panel,  by  means  of  any  prom- 
ises, threats,  persuasions,  gifts,  entreaties,  or  in  any  other  way 
than  by  the  evidence,  the  arguments  of  counsel,  and  other 
legitimate  proceedings  in  open  court,  is  a  currupt  influence. 
The  giving  of  a  reward  to  a  juror  or  jurors  after  verdict  par- 
takes of  the  same  character. 

Rem.  This  crime  is  complete  though  the  attempt  fails,  as 
where  no  verdict  is  rendered  by  the  jury,  or  tlicir  verdict  is  un- 
affected by  the  influence.  Embracery,  like  bribery,  is  a  crime 
both  in  the  person  who  exerts  the  corrupt  influence  and  in  the 
juror  who  yields  to  its  control. 

Read:  4  Bl.  Com.,  p.  140; 
Desty,  Criminal  Law,  §  72; 
May,  Law  of  Crimes,  §  146; 
Clark  and  Marshall,  Criminal  Law,  §  433; 
Clark,  Criminal  Law  (Tiffany  Ed  ),  §  136; 
Kenney,  Criminal  Law,  p.  314; 

1  Russell  on  Crimes,  pp.  486-488; 
Arehhoid,  Criminal  Procedure,  pp.  1666,  1667; 

2  Bishop,  Criminal  Law,  §§  384-389; 
McClain,  Criminal  Law,  §  899. 

5  521.     Of  Barratry. 

Barratry  is  the  habitual  moving  or  exciting  of  quarrels 
between  other  persons,  whether  at  law  or  otherwise.    The  guilty 


586  ELEMENTARY  LAW  §  522 

party  may  be  an  attorney  or  a  magistrate  fomenting  contro- 
versies with  a  view  to  the  fees  to  be  gained  thereby,  or  an 
unofficial  person  acting  through  a  mere  spirit  of  mischief  or 
ill-will.  But  no  man  becomes  a  barrator  by  quarreling  on  his 
own  account  with  other  people,  and  plunging  into  litigation 
with  them,  unless  he  acts  entirely  without  reason  and  for  the 
manifest  purpose  of  vexing  and  oppressing  his  antagonists. 

Rem.  This  crime  cannot  be  completed  by  a  single  act,  or  by 
a  series  of  acts  which  together  constitute  but  one  transaction.  At 
least  three  instances  are  necessary,  but  whether  these  are  al- 
ways sufficient  to  make  the  act  habitual  has  been  disputed. 
When  an  attorney  becomes  a  common  barrator,  he  is  liable  not 
merely  to  the  ordinary  penalties,  but  also  to  dismissal  from  the 
bar. 

Read:  4  Bl.  Com.,  p.  134; 

Hawley,  Criminal  Law,  p.  253; 

Desty,  Criminal  Law,  §§  74-74  o; 

May,  Law  of  Crimes,  §  143; 

Clark  and  Marshall,  Criminal  Law,  §  440; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §  132; 

1  Russell  on  Crimes,  pp.  489-500; 
Archbold,  Criminal  Procedure,  pp.  1857-1859; 

2  Bishop,  Criminal  Law,  §§  63-69. 


§  522.     Of  Maintenance. 

Maintenance  is  the  giving  of  aid  to  either  party  in  a  law-suit 
by  a  person  who  has  no  legitimate  interest  therein.  Such  aid 
may  be  afforded  by  the  furnishing  of  money,  the  hiring  of 
counsel,  or  by  bringing  to  the  party  public  countenance  and 
support.  The  danger  of  oppression,  through  the  accumulation 
of  undue  influence  in  favor  of  one  side  of  the  litigation  and 
against  the  other,  formerly  caused  these  acts  to  be  forbidden, 
though  in  themselves  they  may  have  contained  no  element  of 
wrong;  but  many  of  them  have  now  ceased  to  be  criminal 
unless  coupled  with  the  intent,  and  having  the  probable  effect, 
to  pervert  the  course  of  justice. 

Rem.  The  existence  of  certain  relations  between  a  litigating 
party  and  his  supporters  has  always  justified  this  assistance. 
Thus  a  father  and  son,  a  husband  and  wife,  a  master  and  servant, 
an  attorney  and  client,  a  landlord  and  tenant  may  aid  one  an- 
other in  their  suits  against  third  parties.    And  any  person  may, 


§  523      CRIMES  AGAINST  THE  PUBLIC  WELFARE         587 

from  motives  of  chanty,  contribute  to  enable  a  poor  person  to 
assert  his  legal  rights. 

Read:  4  BI.  Com.,  pp.  134,  135; 

Hawley,  Criminal  Law,  pp.  251-253; 
Desty,  Criminal  Law,  §  74  6 ; 
May,  Law^  of  Crimes,  §§  143-145; 
Clark  and  Marshall,  Criminal  Law,  §  441; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §  133; 

1  Russell  on  Crimes,  pp.  477-485; 
Archbold,  Criminal  Procedure,  pp.  1859,  1860; 

2  Bishop,  Criminal  Law,  §§  121-130; 
Wharton,  Criminal  Law,  §  1854. 


§  523.     Of  Champerty. 

Champerty  is  the  giving  of  aid  to  either  party  to  a  suit,  under 
an  agreement  with  such  party  that  the  proceeds  of  the  suit, 
if  any  there  be,  should  be  divided  between  them.  Thus  the 
contract  of  an  attorney  to  collect  a  claim  by  a  suit  at  his  own 
expen.se,  and  take  a  certain  proj)ortion  of  the  amount  collected 
as  his  recompense;  or  a  bargain  with  a  stranger  to  bear  the 
cost  of  litigation  in  consideration  of  a  percentage  of  the  result, 
are  in  their  nature  champerty.  But  where  such  agreements  are 
in  the  interest  of  justice,  as  affording  an  injured  person  the 
only  opportunity  to  assert  his  rights,  our  modern  law  permits 
them  unless  they  are  made  instruments  of  fraud  or  oppression. 

Rem.  The  essential  evil  in  this  oflence  is  its  tendency  to  incite 
law-suits  which  the  real  parties  in  interest  would  not  think  it 
worth  their  while  to  commence ;  and  in  the  danger  of  unfair  pro- 
ceedings in  order  to  secure  the  profit  of  the  speculator.  Akin 
to  champerty  is  the  buying  or  selling  of  'prelended  liiles  to 
land,  in  order  that  the  buyer  may  enforce  the  title  at  his  own 
expense  and  for  his  own  benefit.  Such  purchases  were  once 
generally  forbidden;  but  in  many  States  the  law  against  them 
is  relaxed. 

Read:  4  Bl.  Com.,  pp.  135,  136; 

Hawley,  Criminal  Law,  pp.  251-253; 

Desty,  Criminal  Law,  §  74  c; 

May,  Law  of  Crimes,  §  143; 

Clark  and  Marsliall.  Criminal  T>aw,  §  441; 

Clark,  Criminal  Law  (Tiffany  Ed.).  §  134; 

Archbold,  Criminal  Procedure,  p.  1861; 

2  Bishop,  Criminal  Lnw,  §§  131-140; 

Wharton,  Criminal  Law,  §  1853. 


588  ELEMENTARY  LAW  §  524 

SECTION   III 

OF   CRIMES   AGAINST  THE   PERSONS'  OF   INDIVIDUALS 

§  624.     Of  Suicide. 

Suicide  is  the  unlawful  and  intentional  destruction  of  one's 
own  life.  Although  this  act  puts  the  person  of  the  guilty  party 
beyond  the  reach  of  human  penalties,  it  is  nevertheless  regarded 
as  a  felony  for  the  purpose  of  determining  the  liability  of  other 
persons  who  participate  in  or  contribute  to  it,  as  well  as  of  those 
who  attempt  it  and  fail  in  its  commission.  Thus  one  who  incites 
another  to  commit  suicide  is  guilty  of  murder  if  his  advice  is  acted 
on  in  his  presence,  and  death  results,  —  as  sometimes  happens 
when  two  individuals  agree  to  die  together,  and  in  carrying  out 
their  agreement  one  perishes,  while  the  other  one  survives.  An 
attempt  at  suicide  is  in  itself  a  crime;  and  if  in  making  it  the 
offender  kills  another  person,  though  unintentionally,  he  adds 
to  the  attempt  the  crime  of  murder.  To  kill  another  at  his  oum 
request  is  also  murder,  unless  the  slayer  is  an  innocent  agent  who, 
through  want  of  capacity,  mistake  of  fact,  coercion,  or  other 
sufficient  reason,  is  regarded  as  without  the  criminal  intent. 

Rem.  Although  the  person  of  the  suicide  is  no  longer  suscep- 
tible to  human  punishment,  the  law  has  always  treated  his  crime 
with  such  horror  and  reprobation  as  its  penalties  were  able  to 
express.  Strange  and  repulsive  modes  of  burial,  forfeiture  of  his 
estate,  public  opprobrium  attached  to  his  name  and  sometimes 
to  his  family,  have  been  among  the  means  employed  to  deter 
others  from  the  commission  of  the  crime ;  and  while  these  penal- 
ties are  no  longer  enforced,  the  law  no  less  regards  the  act  of  the 
wilful  suicide  as  a  public  wrong  against  the  rights  of  the  State  to 
the  life,  the  services,  and  the  good  example  of  the  subject.  The 
modern  heresy  that  a  man  belongs  to  himself  alone,  and  can  do 
■what  he  pleases  with  his  own  soul  and  body,  finds  no  countenance 
in  courts  of  justice,  and  no  support  in  any  principle  of  law. 

Read:  4  Bl.  Com.,  pp.  189,  190; 
Hawley,  Criminal  Law,  p.  144; 
May,  Law  of  Crimes,  §  219; 
Clark  and  Marshall,  Criminal  Law,  §  250; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §  70; 
Kenney,  Criminal  Law,  pp.  103-106; 
3  Russell  on  Crimes,  pp.  8-10; 
2  Bishop,  Criminal  Law,  §  1187; 
Wharton,  Criminal  Law,  §§  448-454. 


§§  525,  526         CRIMES   AGAINST  PERSONS  689 

§  525.     Of  Murder:  the  Person  Killing. 

Murder  is  the  unlawful  killing  of  another  with  malice  afore- 
thought. An  ancient  definition,  which  i.s  frequently  taken  as  a 
basi.s  for  the  di.scussion  of  this  crime,  describes  it  as  committed 
whenever  a  person  of  sound  memory  and  discretion  unlawfully 
kills  a  reasonable  creature,  in  being  and  in  the  peace,  with  malice 
aforethought  express  or  implied.  This  definition  presents  six 
-points  for  consideration:  (1)  The  person  killing;  (2)  The 
person  killed;  (3)  The  act  of  killing;  (4)  The  intent  to  kill; 
(5)  The  unlawfulness  of  the  killing;  (6)  The  malice  afore- 
thought. The  person  killing  must  be  of  sound  memory  and 
discretion ;  that  is,  he  must  be  able  to  comprehend  the  nature 
of  his  act,  and  to  refrain  from  doing  it;  and  he  must  also  be 
over  seven  years  of  age  and,  if  under  fourteen,  must  be  proved 
to  be  capable  of  criminal  intent.  Temporary  insanity  existing 
at  the  moment  of  the  homicide,  and  then  sufficient  to  prevent 
the  slayer  from  knowing  or  understanding  the  character  and 
consequences  of  liis  conduct  or  to  deprive  him  of  self-control, 
also  excludes  him  from  this  definition. 

Rem.  Voluntary  intoxicaiion  caused  by  liquors,  drugs,  and 
other  kindred  substances,  even  when  reducing  its  victim  to  an 
irrational  or  imbecile  condition,  does  not  nMider  the  slayer  irre- 
sponsible, or  (liaiigf"  the  nature  of  his  criminal  act  though  it  may 
show  that  (ieiibcration  and  |)remc(litation  were  impossible.  This 
is  an  arbitrary  rule  of  public  jwlicy,  not  perhaps  psychologically 
and  morally  justifiable,  but  considered  necessary  to  the  admin- 
istration of  the  law  and  the  |)rotection  of  the  public.  Permanent 
insanity,  caused  by  habitual  intcmjx'rance,  is  true  insanity,  and 
like  other  forms  of  mental  disease  may  be  severe  enough  to  make 
its  subject  incapable  of  crime. 

Rkad:  4  Bl.  Com.,  pp.  194,  195; 

Chirk  and  Mar.shall,  Criminal  Law,  §  23.3; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §§  61,  G2,  70; 
Kenney,  Criminal  Law,  pp.  115,  116; 
3  Russell  on  Crimes,  p.  5; 
Wharton,  Criminal  Law,  §§  302,  303. 

§  626.     Of  Murder:  the  Person  Killed. 

The  person  killed  must  i)e  a  rejisonable  creature,  in  being  and 
in  the  jieace.  A  rrasoiinhlr  crrafnrr  is  a  human  being  as  cli.s- 
tinguished  from  an  irrational  animal,  and  from  anv  abnormal 


590  ELEMENTARY   LAW  §  527 

product  of  the  human  species  which,  though  born  of  woman, 
is  destitute  of  inteIHgence  and  of  the  essential  characteristics  of 
the  human  body.  A  reasonable  creature  is  in  being  when  alive 
and  fully  born.  A  reasonable  creature  is  in  the  peace  whenever 
he  is  not  a  rebel,  or  a  public  enemy  engaged  in  actual  battle. 

Rem.  An  infant  in  the  womb  of  its  mother  is  not  a  subject  of 
homicide,  nor  does  it  become  such  when  delivered  until  its  con- 
nection with  the  mother  is  so  far  severed  that,  through  the  opera- 
tion of  its  own  heart  and  lungs,  its  independent  Hfe  has  actually 
begun.  But  when  an  infant,  before  birth,  receives  an  injury  from 
which  it  dies  after  being  fully  born  alive,  its  death  is  that  of  a 
reasonable  creature  in  being;  and  if  the  other  elements  of  the 
crime  are  present  the  person  inflicting  the  injury  will  be  guilty  of 
murder. 

Read:  4  Bl.  Com.,  p.  198; 

Hawley,  Criminal  Law,  pp.  119,  120; 

Desty,  Criminal  Law,  §§  129-129  o; 

May,  Law  of  Crimes,  §  219; 

Clark  and  Marshall,  Criminal  Law,  §  234; 

Kenney,  Criminal  Law,  pp.  119-122; 

3  Russell  on  Crimes,  pp.  5-8; 

Archbold,  Criminal  Procedure,  pp.  732-740; 

2  Bishop,  Criminal  Law,  §§  630-634; 

Wharton,  Criminal  Law,  §§  309,  310,  445-447; 

McClain,  Criminal  Law,  §§  294,  295. 


§  527.     Of  Murder:  the  Act  of  Killing. 

The  act  of  killing  is  an  external  action  or  omission  of  the 
person  killing,  directly  or  indirectly  producmg  upon  the  body 
of  the  person  killed  some  physical  effect,  in  consequence  of  which 
he  dies  within  a  year  and  a  day  after  the  action  or  omission  has 
occurred.  Death  is,  in  contemplation  of  law,  an  event  predicable 
of  the  body  only,  and  hence  must  be  occasioned  by  influences 
which  inflict  corporeal  injury.  But  the  causal  relation  between 
these  influences  and  the  death  need  not  be  immediate.  If  the 
external  action  or  omission  sets  in  motion  a  series  of  natural 
secondary  causes  which  terminate  in  corporeal  consequences 
culminating  in  death,  the  killing  is  attributable  to  the  action  or 
omission  without  which  it  would  not  have  occurred.  To  guard 
against  the  uncertainties  attending  the  attempt  to  trace  these 
causal  relations  beyond  narrow  limits,  the  law  conclusively  pre- 


J 


§  528  CRIMES   AGAINST  PERSONS  591 

sumes  a  death  to  have  been  natural  unless  it  takes  place  luithin 
a  year  and  a  day  after  the  action  or  omission  to  which,  if  homi- 
cidal, it  would  be  attributed.  In  the  computation  of  this  period 
the  day  on  which  the  action  or  omission  happened  is  reckoned 
as  the  first. 

Rem.  Instances  in  which  the  causal  relation  between  the 
criminal  action  or  omission  and  the  death  has  been  decided  to 
exist  are  the  following:  (1)  To  coerce  or  deceive  another  into 
taking  poison,  though  the  taking  be  his  own  act ;  (2)  To  induce 
another  then  and  there  to  commit  suicide;  (3)  To  frighten  an- 
other into  conduct  immediately  destructive  to  his  life;  (4)  To 
neglect  a  legal  duty  toward  a  sick  or  dependent  person  who  per- 
ishes because  of  the  neglect ;  (5)  To  permit  dangerous  animals 
to  go  at  large  at  the  risk  of  inflicting  upon  other  persons  a  fatal 
injury ;  (6)  To  expose  another  to  the  contagion  of  a  deadly  pes- 
tilence; (7)  To  inflict  a  wound  which  through  ordinary  medical 
treatment  becomes  the  cause  of  death.  Such  causes  as  these,  and 
numberless  other  actions  and  omissions  which  of  themselves 
produce  no  mortal  injury  yet  are  the  sources  from  which  through 
intermediate  causes  death  results,  are  acts  of  killing,  and  render 
the  actor  guilty  of  the  crime  which  the  death  completes. 

Read:  4  Bl.  Com.,  pp.  196,  197; 

Hawley,  Criminal  Law,  pp.  120-122; 

Desty,  Criminal  Law,  §§  122-124/; 

May,  Law  of  Crimes,  §  230; 

Clark  and  Marshall,  Criminal  Law,  §§  235-238; 

Kenney,  Criminal  Law,  pp.  116-119,  129-130; 

3  Russell  on  Crimes,  pp.  10-38; 

ArchboM,  Criminal  Procedure,  pp.  642-653,  727-732,  846-863; 

2  Bishop,  Criminal  Law,  §§  635-641; 

Wharton,  Criminal  Law,  §§  152-169,  312; 

McClain,  Criminal  Law,  §§  282-293. 


§  528.     Of  Murder:  the  Intent  to  Kill. 

Every  human  action  or  omission  for  which  the  actor  can  be 
held  legally  or  morally  responsible,  mast  be  the  expression  of  an 
actual  or  presumed  intention,  not  only  to  perform  the  act  but  to 
produce  its  consequences.  Hence  every  voluntary  action  or 
omission,  which  indirectly  or  directly  causes  death,  is  in  the 
eye  of  the  law  the  manifestation  of  an  intent  to  kill.  The  doctrine 
that  every  person  must  be  presumed  to  have  foreseen  and  in- 
tended all  the  natural  and  j)robable  consequences  of  his  voluntary 
acts  is  here  apphed  to  its  fullest  extent;  and  whenever  any 


592  ELEMENTARY  LAW  §  528 

course  of  conduct,  active  or  passive,  might  under  ordinary  cir- 
cumstances result  in  the  death  of  another  person,  any  one  w^ho 
voluntarily  enters  on  that  course  of  conduct  is  held  to  have  in- 
tended the  death  w^hich  it  produces.  Thus  one  who,  from  any 
motive  whatever,  neglects  a  legal  duty  whereby  he  evidently 
puts  at  hazard  the  lives  of  others ;  or  who  performs  an  act  which 
through  a  series  of  secondary  causes,  not  depending  on  extra- 
ordinary and  unforeseeable  conditions,  produces  death,  —  not 
only  is  guilty  of  the  act  of  killing  but  also  of  the  intent  to  kill. 
Where  the  line  of  demarcation  between  the  ordinary  and  the 
extraordinary  consequences  of  a  course  of  conduct  lies,  in  any 
given  case,  must  be  gathered  from  the  circumstances  of  the  case 
and  from  the  general  experience  of  mankind,  and  is  not  always 
easy  to  define.  It  is  the  line,  which,  in  the  law,  separates  acci- 
dent from  causal  relation ;  and  it  is  properly  and  wisely  drawn 
by  the  law  where  it  will  impose  upon  the  actor  the  largest  meas- 
ure of  responsibility  which  can  justly  be  imputed  to  liim.  In- 
stances where  this  rule  has  been  applied  are  found  in  cases 
involving  the  reckless  propulsion  of  vehicles  in  public  places ;  in 
the  use  of  deadly  weapons;  in  assaults  with  clubs  or  missiles; 
in  attempts  to  stupefy  with  drugs;  in  the  exhibition  of  fire- 
arms in  order  to  frighten  bystanders;  in  shooting  at  others  in 
sport;  in  chastising  delinquents  with  undue  severity;  in  the 
setting  loose  of  dangerous  animals;  in  carelessness  of  medical 
treatment,  —  from  any  one  of  which,  if  death  results,  an  intent 
to  kill  is  presumed  because  death  is  its  probable  though  not 
inevitable  consequence.  For  the  same  reason,  where  the  person 
killing  attempted  to  take  the  life  of  a  particular  individual,  and 
by  chance  the  blow  killed  another,  it  is  assumed  that  he  intended 
to  kill  the  one  whose  death  he  has  thus  undesignedly  produced. 

Rem.  This  presumed  intent  to  kill  must  be  carefully  distin- 
guished from  malice  and  malice  aforethought,  which  are  actual 
conditions  of  the  mind  and  will,  and  are  predicable  only  of  un- 
lawful killing;  while  the  imputed  intent  to  kill  exists  in  reference 
to  every  homicide,  whether  lawful  or  unlawful,  except  that  which 
results  from  accident  alone.  Moreover,  this  intent  must  not  be 
confounded  with  deliberation  or  premeditation,  which  are  also 
actual  states  of  mind  and  may  or  may  not  accomj)any  the  pre- 
sumed intent  to  kill. 

Read:  Clark  and  Marshall,  Criminal  Law,  §§  241-245. 


§  529  CRIMES    AGAINST    PERSONS  593 

§  529.     Of  Murder:  the  Unlawfulness  of  the  KilUng. 

The  act  of  kiUiug  is  unlawful  in  every  case  where  it  is  not  ex- 
pressly justified  or  excused  by  law.  Justifiahle  homicide  is  an 
act  of  killing  in  pursuance  of  a  legal  duty.  Excusable  homicide 
is  an  act  of  killing  not  in  pursuance  of  a  legal  duty,  but  under 
circumstances  which  so  far  palliate  the  killing  that  the  law  deems 
it  wiser,  in  the  interest  of  the  public,  not  to  visit  it  with  punish- 
ment. The  princij)al  instances  of  justifiable  homicide  arc  four: 
(1)  Where  a  public  officer  takes  life  in  suppressing  a  riot,  or  in 
obedience  to  a  legal  warrant  of  execution  commanding  him  so 
to  do;  (2)  Where  a  felony  has  been  committed,  and  the  officers 
or  private  persons  who  are  lawfully  engaged  in  endeavoring  to 
arrest  the  guilty  party  are  unable  to  capture  him  without  killing 
him,  and  so  in  good  faith  take  his  life  in  order  to  accomplish  his 
arrest;  (3)  Where  a  public  officer  is  conunanded  by  a  lawful 
warrant  to  arrest  a  designated  person  as  a  felon,  and  necessarily 
kills  him  in  effecting  his  arrest;  (4)  WHiere  a  felony  attended  with 
extreme  force  or  great  atrocity  is  actually  being  attempted  against 
the  person,  habitation,  or  property  of  an  individual  or  of  some 
one  whom  he  is  under  a  legal  obligation  to  defend,  and  no  other 
means  of  preventing  the  felony  being  available  to  him  he  kills 
the  felon.  In  this  fourth  form  of  justifiable  homicide  all  cases 
of  true  self-defence  are  embraced,  as  well  as  all  cases  in  which  the 
slayer  owes  to  the  public  the  general  duty  to  suppress  attempted 
felonies. 

Rem.  The  cases  of  excusable  homicide  can  never  be  exactly 
and  permanently  classified,  since  the  policy  which  recognizes  the 
excuse  varies  with  the  state  of  public  feeling  or  conviction. 
Among  those  which  have  hitherto  been  thus  regarded  are  the 
following:  (1)  Where  a  person  doing  a  lawful  act  with  reason- 
able care,  and  without  inti'iiding  bodily  harm  to  any  one,  causes 
the  death  of  another;  (2)  Where  a  public  officer,  lawfully  at- 
tempting to  arrest  a  person  who  is  charged  with  a  misdemeanor, 
meets  with  forcible  resistance,  and  in  endeavoring  to  overcome 
it  kills  his  adversary;  (.3)  Where  a  person,  resisting  an  illegal 
arrest  byjawful  means,  unintentionally  or  necessarily  takes  the 
life  of  his  assailant ;  (4)  Where  a  person  who,  without  the  inten- 
tion to  inflict  serious  bodily  harm,  engages  in  a  sudden  combat 
with  another,  and  finding  himself  sore  pressed  and  his  life  in 
danger  retreats  as  far  as  he  safely  can,  and  then  kills  his  adver- 
sary in  his  own  necessarv  defence;    (5)  Where  a  person,  without 

38 


1 


594  ELEMENTARY  LAW  §  530 

the  intention  to  inflict  serious  bodily  harm,  voluntarily  provokes  a 
sudden  combat  with  another,  and  after  the  combat  has  com- 
menced  openly  declines  a  further  conflict,  and  by  words  or  signs 
clearly  conveys  to  his  antagonist  his  desire  for  peace,  but  subse- 
quently being  driven  to  the  wall  has  no  alternative  except  to 
sacrifice  the  life  of  his  opponent  or  to  lose  his  own,  and  in  this 
emergency  kills  his  adversary;  (6)  Where  a  person  who  is  as- 
saulted by  another  under  circumstances  which  create  in  his  mind 
a  reasonable  though  erroneous  belief  that  the  assailant  intends  to 
take  his  life  or  inflict  upon  him  serious  bodily  harm,  and  that 
this  intention  is  likely  to  be  accomplished,  flees  as  far  as  he  can 
and  then,  seeing  no  other  way  of  escape,  kills  his  assailant. 
These  cases  illustrate  the  attitude  of  the  courts  and  legislatures 
toward  this  form  of  homicide,  while  oftentimes  the  practical  im- 
munity accorded  to  the  slayer  goes  far  beyond  the  limits  fixed 
by  the  current  letter  of  the  law,  —  as  where  officers  of  the  law 
remain  inactive  when  the  penalty  of  death  is  inflicted  on  some 
atrocious  offender  by  an  aroused  community,  without  judge  or 
jury;  or  where  juries  refuse  to  convict  fathers,  husbands,  or 
brothers  who  have  avenged  the  dishonor  of  their  sisters,  wives, 
and  daughters  in  the  blood  of  their  seducers. 

Read:  1  Bl.  Com.,  pp.  339-349; 
4  Bl.  Com.,  pp.  177-188; 
Hawley,  Criminal  Law,  pp.  122-137; 
Desty,  Criminal  Law,  §§  125-127  c; 
May,  Law  of  Crimes,  §§218,  231-239; 
Clark  and  Marshall,  Criminal  Law,  §§  268-288; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §§  63-66,  68,  69; 
Kenney,  Criminal  Law,  pp.  94-102; 
3  Russell  on  Crimes,  pp.  205-217; 
Archbold,  Criminal  Procedure,  pp.  653-697; 
2  Bishop,  Criminal  Law,  §§  613-622; 
Wharton,  Criminal  Law,  §§  306-308,  401-444; 
McClain,  Criminal  Law,  §§  296-300; 
Rice,  Criminal  Evidence,  §§  357-370; 
Vickers,  Police  Officers  and  Coroners,  pp.  165-243; 
Perley,  Mortuary  Law,  pp.  11-19; 
Smith,  Coroners  and  Constables,  pp.  21-45; 
McMahon,  Coroners,  pp.  1-347. 


§  530.     Of  Murder:  the  Malice  Aforethought. 

Malice  aforethought  is  a  certain  condition  of  the  mind  and  will 
of  the  person  killing,  which  exists  both  before  and  at  the  time  of 
the  killing,  and  under  the  influence  of  which  the  killing  is  per- 
formed. This  condition  is  characteristic  of  the  crime  of  viurder, 
and  differentiates  it  from  every  other  form  of  homicide.     It  is 


§  530         CRIMES  AGAINST  PERSONS  595 

not  identical  with  the  intent  to  kill,  for  this  intent  is  presumed 
in  every  voluntary  killing  whether  lawful  or  unlawful,  while 
malice  aforethought  is  an  actual  condition  of  mind  and  will 
which  is  not  presumed  but  must  be  definitely  proved.  Malice, 
as  used  in  this  phrase,  signifies  a  malignant  purpose;  the  im- 
pulse of  a  mind  indifferent  to  the  obligations  imposed  by  reason, 
justice,  and  the  law.  Hence  malice  aforethought  is  a  deliberate 
malignant  purpose;  a  premeditated  evil  design;  a  mental  and 
moral  operation  wliich  is  not  expressed  by  such  definitions  as 
"a  formed  design  to  take  life,"  or  "a  deliberate  intention  to  kill," 
or  "a  premeditated  killing,"  and  other  equivalent  descriptions, 
since  these  lack  the  essential  element  of  malignancy,  and  might 
be  predicated  as  well  of  justifiable  or  excusable  homicide.  It 
has  been  more  perfectly  defined  as  "a  deliberate  purpose, 
formed  in  cool  blood,  to  perpetrate  an  unlawful  act  which  is 
likely  to  result  in  serious  bodily  harm" ;  or  negatively  as  "  that 
state  of  mind  and  will  in  which  one  person  voluntarily  and  un- 
lawfully kills  another,  otherwise  than  in  heat  of  blood  engendered 
by  a  sudden  combat  or  by  a  provocation  which  the  law  does  not 
expect  frail  human  nature  to  withstand."  Malice  aforethought 
thus  implies  a  mind  and  will  sufficiently  composed  to  be  able  to 
form  a  deliberate  purpose,  —  that  is,  to  apprehend  and  reason 
upon  premises  and  to  draw  conclusions;  and  a  wicked  and  evil 
disposition  regardless  of  human  rights  and  social  duty.  An  un- 
lawful homicide  lacking  either  of  these  ingredients  is  man- 
slaughter, and  not  murder. 

Rem.  When  mahce  aforethought  is  manifested  in  unequivo- 
cal words  or  actions,  such  as  deliberate  threats,  concerted  plans 
or  lying  in  wait  to  kill;  the  careful  selection  and  use  of  deadly 
weapons;  reckless  attacks  upon  indefinite  groups  of  people; 
attempts  to  commit  robbery,  arson,  rape,  or  other  previously  con- 
trived crimes  dangerous  to  human  life, —  it  is  vnWcilexpressv^alire. 
When  it  is  inferred  from  the  deliberate  commission  of  unlawful 
acts  not  immediately  related  to  the  death  in  which  they  happen 
to  result,  —  such  as  forcible  resistance  to  an  officer;  the  ad- 
ministration of  an  ana'sthetic  to  prevent  opposition  to  an  in- 
tentled  crime;  or  the  killing  in  hot  blood  engendered  by  an 
insufficient  provocation, —  it  is  called  implied  malice.  These 
terms  indicate  no  ditt'erence  in  the  species  of  malice  aforethought 
though  they  may  in  its  degree;   but  rather  show  the  character  of 


596  ELEMENTARY  LAW  §  531 

the  evidence  by  which  it  may  be  proved.  The  burden  of  proving 
that  a  homicide  was  committed  with  mahce  aforethought  rests 
logically  and  legally  upon  the  State,  in  every  prosecution  for  this 
crime.  But  as  the  defendant  is  in  a  better  situation  to  under- 
stand and  explain  his  motives  at  the  time  of  killing  than  the  State 
can  be,  the  rules  of  evidence  require  him  to  raise  the  issue  and 
present  the  proof  upon  this  subject  when  the  State  has  shown 
that  he  performed  the  act  of  killing. 

Read:  4  Bl.  Com.,  pp.  198-201; 

Hawley,  Criminal  Law,  pp.  137-140,  143,  144; 

Desty,  Criminal  Law,  §§  129  b-l29  h; 

May,  Law  of  Crimes,  §§  220-224; 

Clark  and  Marshall,  Criminal  Law,  §§  239,  240,  246-249; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §§  71,  72; 

Kenney,  Criminal  Law,  pp.  122-129; 

3  Russell  on  Crimes,  pp.  1-4,  70-129; 

Archbold,  Criminal  Procedure,  pp.  740-775; 

2  Bishop,  Criminal  Law,  §§  623-629,  642-693; 

McClain,  Criminal  Law,  §§  317-334,  358-368. 

§  531.     Of  Miirder:  the  Degrees  of  Murder. 

Malice  aforethought  is  evidently  a  matter  of  degrees.  Between 
the  condition  of  one  who  calmly  plans  and  executes  the  murder 
of  an  innocent  and  unsuspecting  victim,  and  that  of  one  who, 
hot  with  wrath  and  indignation  from  an  injury  which  the  law 
forbids  him  to  resent  with  violence,  strikes  his  tormentor  a  fatal 
blow,  there  is  a  wide  field  occupied  by  many  gradations  of  mental 
composure,  intensity  of  emotion,  wrongful  motive,  evil  disposition, 
and  moral  responsibility.  When  all  forms  of  murder  were  pun- 
ished with  death  it  was  of  slight  importance  whether  the  culprit 
was  animated  by  one  extreme  of  malice  or  the  other.  But  with 
a  more  humane  instinct  our  modern  law  has  attempted  to  dis- 
criminate between  these  conditions  by  dividing  murder  into 
different  degrees,  and  imposing  only  on  the  most  flagrant  the 
penalty  of  death.  The  local  legislation  of  our  different  States 
is  not  uniform  upon  this  point;  some  recognizing  two  degrees  of 
murder  only,  the  first  and  second;  others  distributing  the  crime 
into  more  numerous  grades.  Under  these  laws  the  highest  degree 
is  usually  characterized  by  deliberate  premeditation,  or  by  ex- 
press malice,  or  by  both  combined. 

Rem.  When  the  standards  fixed  for  these  degrees  of  murder 
are  adhered  to  only  the  most  heinous  forms  of  homicide  receive 


§  532  CRIMES   AGAINST  PERSONS  597 

capital  punishment.  But  when  the  protection  they  were  intended 
to  afford  to  the  accused  is  frittered  away  by  ambiguous  instruc- 
tions to  the  jury,  as  so  frequently  occurs,  the  distinctions  be- 
tween the  different  degrees  of  murder,  and  even  those  between 
murder  and  manslaughter,  are  lost  sight  of ;  and  persons  are  con- 
victed and  executed  for  the  highest  crime  when  they  were  mani- 
festly guilty  only  of  the  lower.  Upon  the  question  of  deliberation 
and  premeditation  the  mental  incapacity  of  the  accused,  even 
though  produced  by  voluntary  intoxication,  may  be  shown  in  his 
defence. 

Read:  Hawley,  Criminal  Law,  pp.  141-143; 
Desty,  Criminal  Law,  §§  129,  129  5; 
May,  Law  of  Crimes,  §  225 ; 
Clark  and  Marshall,  Criminal  Law,  §§  251-254; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §  72; 
2  Bishop,  Criminal  Law,  §§  723-731; 
Wharton,  Criminal  Law,  §§  375-394; 
McClain,  Criminal  Law,  §§  352-368. 


§  632.     Of  Manslaughter. 

Man.slaughtrr  is  the  unlawful  kilUngof  another  without  malice 
aforethought.  It  embraces  all  forms  of  unlawful  killing  except 
murder,  and  contains  the  same  ingredients  and  is  governed  by 
the  same  rules  as  murder  in  reference  to  the  person  killing,  the 
person  killed,  the  act  of  killing,  the  intent  to  kill,  and  the  unlaw- 
fulness of  the  killing,  —  its  sole  difference  being  in  the  absence 
of  that  mahgnant  purpose  called  maUce  aforethought.  It  is 
divided  by  the  law  into  tiro  species,  according  to  the  mental  re- 
lation of  the  slayer  to  the  act  of  killing,  namely,  (1)  Involuntary 
Manslaughter;   and  (2)  Voluntary  Manslaughter. 

Rem.  The  absence  of  malice  aforethought  from  the  act  of 
killing  may  consist  either  in  the  entire  absence  of  any  purpose 
to  take  life,  or  in  the  presence  of  a  purpose  to  kill  which,  though 
unlawful,  is  not  deliberate  and  malignant.  In  the  former  case  the 
death  of  the  victim  is  not  the  desired  or  expected  result  of  the  un- 
lawful act,  and  though  the  art  may  be  voluntary  its  c()nse(|uence, 
the  killinri,  is  involuntjiry.  In  the  latter  case  the  killing  is  volun- 
tary, but  the  mind  of  the  slayer  is  not,  at  the  time,  in  that  con- 
dition of  composure  which  makes  liis  act  of  killing  (he  expression 
of  a  premeditated  v\\\  design.  Hence  the  distinction  between 
voluntary  and  inv(jluntarv  manslaughter  resides  not  in  the  act, 
but  in  the  mental  attitude  of  the  actor  toward  the  act  and  its 
result  at  the  time  the  act  of  killing  was  performed. 


598  ELEMENTARY   LAW  §§  533,  534 

Read:  Desty,  Criminal  Law,  §§  128-128  a; 

Clark  and  Marshall,  Criminal  Law,  §§  255,  258;' 
Clark,  Criminal  Law  (Tiffany  Ed.),  §§  73,  74; 
3  Russell  on  Crimes,  pp.  129-145,  171-202; 
Archbold,  Criminal  Procedure,  pp.  698-700; 
2  Bishop,  Criminal  Law,  §§  694-721,  732-741; 
Wharton,  Criminal  Law,  §§  304,  305,  319-374; 
McClain,  Criminal  Law,  §§  335,  336. 


§  533.     Of  Involuntary  Manslaughter. 

Involuntary  manslaughter  is  an  unlawful  killing  through  the 
voluntary  performance  of  some  wrongful  act,  or  through  the  cul- 
pable omission  of  some  legal  duty,  which  at  the  time  was  not 
expected,  and  could  not  reasonably  have  been  expected,  to  re- 
sult in  death.  Thus  when  death  is  caused  by  a  tort  or  crime 
which  was  not  calculated,  either  from  its  own  nature  or  the 
surrounding  circumstances,  to  produce  serious  bodily  harm  the 
killing  is  involuntary  manslaughter,  unless  the  wrongful  act  were 
one  of  those  felonies  from  whose  commission  malice  aforethought 
is  inferred  by  law.  Again,  when  death  follows  as  an  extraordi- 
nary consequence  from  the  wrongful  neglect  of  a  legal  duty 
which  has  no  manifest  immediate  relation  to  the  personal  se- 
curity of  others,  or  from  the  careless  performance  of  a  lawful 
act,  it  is  also  involuntary  and  the  crime  is  manslaughter. 

Rem.  Where,  however,  the  legal  duty  is  one  on  whose  proper 
performance  human  safety  evidently  depends  its  voluntary 
omission  is  gross  and  wanton  negligence,  from  which  implied 
malice  may  be  inferred,  and  so  raise  the  crime  to  murder. 

Read:  4  Bl.  Com.,  pp.  192-194; 

Hawley,  Criminal  Law,  pp.  148-153; 

Desty,  Criminal  Law,  §  128  c; 

Clark  and  Marshall,  Criminal  Law,  §§  262-267; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §  76; 

Kenney,  Criminal  Law,  pp.  110-115; 

McClain,  Criminal  Law,  §§  347-351. 

§  534.     Of  Voluntary  Manslaughter. 

Voluntary  manslaughter  is  the  voluntary  and  unlawful  killing 
of  another  while  the  mind  of  the  slayer  is  in  a  condition  which 
excludes  the  presence  of  a  deliberate  malignant  purpose  to  take 
life.    This  condition  the  law  recognizes  as  existing  in  two  cases: 


§  535  CRIMES    AGAINST    PERSONS  599 

(1)  Where  the  killing  takes  place  in  a  sudden  combat  while  the 
slayer  is  in  hot  blood;  (2)  Where  the  killing  is  committed  in  a 
sudden  passion  generated  by  an  immediate  provocation  which 
the  law  regards  as  sufficient  to  transiently  disturb  the  mind  and 
destroy  self-control. 

Rem.  A  voluntary  and  unlawful  killing  by  a  person  whose  in- 
tellect is  clear,  and  whose  will  is  free  from  controlling  impulses, 
is  both  deliberate  and  malignant,  since  the  nature  and  unlaw- 
fulness of  the  act  are  fully  understood,  and  the  will  dictates  its 
performance  in  conscious  defiance  of  divine  and  human  laws. 
Hence  it  is  only  when  the  intellect  is  clouded,  and  the  will  con- 
strained, by  causes  concurrent  with  the  killing,  yet  in  a  degree  not 
amounting  to  insanity,  that  the  homicidal  act  can  be  voluntary, 
and  still  not  the  expression  of  a  premeditated  evil  design.  The 
field  of  human  experiences  which  lies  between  knowledge  and 
self-control  on  one  hand,  and  insanity  and  irresponsibility  en 
the  other,  is  very  wide  and  contains  numerous  degrees  and  varia- 
tions. The  law  in  grouping  these  experiences  in  two  forms,  ac- 
cording to  the  circumstances  in  which  they  may  generally  be  ex- 
pected to  arise,  has  not  intended  to  ignore  the  fact  that  hot  blood 
is  hot  blood  whether  caused  by  sudden  combat,  or  by  sufficient 
provocation,  or  by  any  other  circumstance  which  does  actually 
engender  it;  and  that  hot  blood  dors-  destroy  that  equilibrium  of 
mind  and  that  complete  self-control  without  which  mahce  afore- 
thought is  impossible. 

Read:  4  Bl.  Com.,  pp.  191,  192; 

Hawley,  Criminal  Law,  pp.  146-148; 

Desty,  Criminal  Law,  §§  128  6,  128  d,  128  e; 

Clark  and  Marshall.  Criminal  Law,  §§  256,  257,  259; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §  75; 

Kenncy,  Criminal  Law,  pp.  106,  107; 

McClain,  Criminal  Law,  §  343. 


§  535.     Of  Voluntary  Manslaughter:  Sudden  Combat. 

A  s'lifhlrn  rowhaf  is  one  which  arises  without  premeditated 
plan  or  purpose  on  the  part  of  the  slayer,  and  which  so  far  as 
he  is  concerned  is  conducted  ojienly  and  upon  e(]ual  terms, 
without  taking  an  unfair  advantage  of  his  adversary.  That 
the  fatal  blow  was  given  in  a  sudden  combat  does  not,  however, 
reduce  the  homicide  from  murder  to  manslaughter,  unless  the 
.slayer  was,  nt  the  time  th(>  blow  was  given,  bereft  of  mental  com- 
posure and  complete  self-control  by  the  hot  blood  engendered 


600  ELEMENTARY  LAW  ,'  §  536 

by  the  combat ;  and  this  is  a  question  of  fact  to  be  decided  bj 
the  jury  in  view  of  the  natural  inflammability  of  the  slayer's  dis- 
position and  the  excitement  to  which  he  had  been  subjected. 
Moreover,  the  killing  must  have  taken  place,  not  only  after  the 
generation  of  hot  blood,  but  before  the  blood  had  so  far  cooled 
that  reason  and  freewill  have  resumed  their  sway.  This  also 
is  a  question  of  fact,  to  be  determined  partly  in  view  of  the  lapse 
of  time,  and  partly  in  view  of  other  circumstances  indicating  a 
sufficient  restoration  of  composure  and  self-command  to  render 
the  slayer  fully  responsible  for  his  own  conduct.  A  common  and 
reasonable  test  of  this  is  whether,  after  the  interruption  of  the 
combat  and  before  the  killing,  the  attention  of  the  slayer  had 
been  diverted  to  a  different  occupation  requiring  some  delibera- 
tion. Should  this  occur,  and  should  the  slayer  on  resuming  the 
combat  kill  his  adversary  without  a  new  enkindling  of  the  blood, 
his  act  would  be  regarded  as  deliberate  and  his  crime  as  murder. 

Rem.  A  combat  may  be  sudden,  though  the  parties  to  it  have 
been  ancient  enemies,  and  may  have  anticipated  its  occurrence 
as  probable,  and  have  prepared  themselves  to  meet  the  emer- 
gency; provided  its  actual  occurrence  was  by  chance,  and  the 
slayer  did  not  j)rovoke  it  for  a  malicious  purpose  nor  employ  it 
as  an  opportunity  for  the  gratification  of  his  revenge.  Even  the 
use  of  deadly  weapons,  unless  they  were  procured  beforehand  to 
be  used  on  this  occasion,  or  were  concealed  from  the  antagonist, 
or  were  treacherously  handled,  does  not  show  that  the  combat  in 
question  was  premeditated,  or  that  the  killing  was  deliberate. 

Read:  Desty,  Criminal  Law,  §  128/; 
Kenney,  Criminal  Law,  pp.  109,  110; 
3  Russell  on  Crimes,  pp.  57-70; 
Archbokl,  Criminal  Procedure,  pp.  714-726; 
Wharton,  Criminal  Law,  §§  471-483; 
McClain,  Criminal  Law,  §  339. 


§  536.     Of  Voluntary  Manslaughter:  Sufficient  Provocation. 

Hot  blood  engendered  by  sufficient  provocation  is  also  recog- 
nized by  law  as  capable  of  producing  such  disturbance  in  the 
mind  that  one  who,  under  its  influence,  unlawfully  and  voluntarily 
kills  another  may  still  be  free  from  malice  aforethought.  The 
questions  of  the  existence  of  hot  blood,  and  of  its  effect  upon  the 
intellect  and  will  of  the  slayer,  are  questions  of  fact  to  be  settled, 


§  536  CRIMES   AGAINST  PERSONS  601 

as  in  the  case  of  sudden  combat,  in  view  of  the  natural  suscep- 
tibiUties  of  the  slayer  and  the  degree  of  provocation  to  which 
he  was  subjected.  Between  the  hot  blood  and  its  provocation  the 
causal  relation  must  be  immediate  and  direct.  One  who  volun- 
tarily broods  over  a  real  or  fancied  wrong,  until  he  stimulates 
himself  into  a  state  of  ungovernable  passion,  is  responsible  both 
for  the  passion  and  its  consequences.  But  a  wrong  does  not 
become  a  provocation  until  it  comes  to  the  knowledge  of  the 
person  wronged,  and  resentment  then  excited  is  immediate  and 
direct,  although  the  event  to  which  it  must  be  attributed  as  its 
cause  long  since  occurred. 

Re7ii.  To  guard  against  homicidal  acts  by  persons  who  make 
no  effort  to  properly  control  their  passions,  the  law  has  some- 
times attempted  to  |)lace  some  limits  to  the  kind.s  of  provocation 
which  it  will  recognize  as  sufficient.  Thus  it  has  been  held  that 
mere  words  can  never  be  a  sufficient  provocation ;  nor  any  tres- 
pass to  land  or  other  property;  nor  any  past  or  now  intended 
adultery  with  tiie  slayer's  wife ;  nor  the  seduction  of  his  sister.  On 
the  other  hand,  it  has  been  decided  that  words  leading  to  a  combat, 
or  the  detection  of  an  adulterer  in  the  act  of  adultery,  or  a  present 
forcible  attack  uj)on  a  wife  or  daughter,  may  be  sufficient.  Ob- 
viously it  is  not  within  the  power  or  the  province  of  the  law  to  fix 
an  inflexible  standard  by  which  the  eft'ect  of  certain  influences 
upon  human  susceptibilities  is  to  be  determined.  In  reference  to 
this  matter  every  case  must  be  judged  by  itself,  avoiding  alike 
the  evil  of  acce])ting  frivolous  excuses  for  wanton  acts,  and  the 
perhaps  worse  mistake  of  flnding  the  slayer  guilty  of  deliberate 
malice  because,  under  the  same  circumstances,  other  men  think 
they  would  retain  their  self-control.  Upon  this  (|ucstion  mod- 
ern authorities  are  more  likely  to  be  correct  than  are  the  older 
cases;  es|)ecially  wiiere  the  courts,  instead  of  adopting  blindly 
the  ancient  dicta,  apj)ly  to  them  the  c|ualiti(  ations  which  our  more 
intimate  knowledge  of  the  operations  of  the  human  mind  compel 
us  to  observe. 

Read:  Hawloy,  Criminal  Law,  pp.  144-146; 
Desty,  Criminal  Law,  §§  12Sf/-12S/; 
May,  Law  of  Crimes,  §§  '226-2"2'J; 
Clark  and  Marshall,  Criminal  Law,  §§  260,  261; 
Clark,  Criminal  Law  (Tiffany  K.l.),  §  42; 
Kcnney,  Criminal  Law,  pp.  107-109; 
3  Russell  on  Crimes,  pp.  .3S-.57; 
Arclihold,  Criminal  Procedure,  pp.  700-714; 
Wharton.  Criminal  Law,  §§  455-470; 
McClain,  Criminal  Law,  §§  337,  338,  340-342,  344-346. 


602  ELEMENTARY   LAW  §  537 

§  537,     Of  the  Ultimate  Criterion  of  the  Criminality  of  the  Act 
of  Killing. 

The  act  of  killing  is  that  'precise  action  or  omis'sion  from  which, 
as  an  eflPect  from  its  cause,  the  death  directly  or  indirectly  results. 
The  criminahty  of  the  act  depends  upon  its  unlawfulness  at  the 
instant  when  it  was  committed ;  and,  if  unlawful,  the  degree  of 
its  criminality  is  determined  by  the  state  of  mind  and  will  with 
which  it  was  then  performed.  A  homicidal  act  is  usually  one  of 
a  series  of  events  which,  taken  together,  constitute  a  single 
transaction;  and  if  the  act  of  killing  were  interpreted  by  the 
character  of  the  transaction  as  a  whole,  its  real  nature  might  be 
frequently  obscured.  Hence  it  is  always  necessary  that  the 
whole  transaction  should  be  carefully  analyzed;  the  homi- 
cidal element  be  separated  from  all  its  non-essential  circum- 
stances; and  it  be  thus  ascertained  whether  at  the  precise  mo- 
ment when  it  was  performed  the  act  was  justifiable,  excusable, 
or  unlawful;  and,  if  unlawful,  whether  it  was  then  and  there 
prompted  by  malice  aforethought,  or  by  heat  of  blood,  or  con- 
sisted in  a  tort  or  an  unaggravated  crime,  or  in  a  culpable  omis- 
sion. The  failure  to  make  this  exact  analysis,  and  the  tendency 
of  the  courts  to  regard  the  surrounding  circumstances  of  the  act 
as  determining  its  criminality,  instead  of  as  mere  indications  of 
that  state  of  mind  and  will  by  which  criminality  is  really  to  be 
measured,  have  led  to  many  perversions  of  justice  both  in  favor 
of  and  against  the  accused. 

Rem.  Thus,  for  example,  the  act  of  killing  in  a  sudden  com- 
bat may  take  place  from  the  passion  engendered  in  the  conflict, 
or  from  a  preconceived  malicious  purpose,  or  in  necessary  self- 
defence  occasioned  by  the  persistence  of  the  adversary  after  the 
slayer  had  openly  declined  a  further  warfare  and  had  been  driven 
to  the  wall.  So  one  who  lies  in  wait  to  kill  another,  if  he  is  sur- 
prised and  attacked  by  his  enemy  before  he  has  an  apportunity 
to  offer  violence  to  him,  and  meets  the  attack  with  adequate  vio- 
lence leading  to  a  combat  in  which  he  takes  the  life  of  his  antago- 
nist, may  have  slain  him  in  self-defence,  or  in  the  heat  of  blood, 
or  from  the  malice  which  he  entertained  before  the  conflict 
and  which  may  have  continued  until  the  homicidal  act  was  per- 
formed. Until  the  complex  details  of  which  such  transactions 
are  composed  are  sifted  out,  and  apprehended  in  their  pro])er 
relations  to  the  criminal  act  itself,  the  character  of  that  act  can- 
not be  understood,  nor  the  fact  and  measure  of  its  criminality 
be  determined. 


§§  538,  539  CRIMES   AGAINST   PERSONS  G03 

§  538.     Of  the  Corpus  Delicti. 

An  important  rule  in  cases  of  homicide,  adopted  for  the  pro- 
tection of  the  accused,  provides  that  he  shall  not  be  convicted 
of  the  crime  except  upon  his  own  confession  made  in  open  court, 
unless  the  corpus  delicti  be  clearly  proved.  The  corpus  delicti, 
or  body  of  the  crime,  embraces  that  portion  of  the  facts  which 
constitutes  the  homicidal  act,  as  distinguished  from  those  facts 
which  show  whether  the  act  was  lawful  or  unlawful,  and  those 
which  identify  the  accused  as  the  person  who  committed  it. 
Whenever  a  murder  is  alleged  five  issues  arise:  (1)  Is  the  sup- 
posed victim  dead?  (2)  Did  he  die  from  a  homicidal  act?  (3) 
Who  perpetrated  the  homicidal  act?  (4)  Did  he  commit  the 
act  unlawfully?  (5)  Was  the  act  prompted  by  malice  afore- 
thought? To  the  corpus  delicti  belong  the  answers  to  the  first 
two  questions.  Some  authorities  assert  that  it  also  includes  the 
answer  to  the  fourth.  Whether  in  the  conduct  of  a  trial  the 
corpus  delicti  must  be  proved  before  an  attempt  is  made  to 
connect  the  accused  with  the  homicidal  act  has  been  disputed. 
In  actual  practice  evidence  is  introduced  on  all  these  questions 
in  such  order  as  the  court  and  the  parties  judge  convenient. 

Rem.  Formerly  it  was  maintained  that  no  ])roof  of  the  hom- 
icidal death  was  sufficient  for  conviction  unless  the  body  of  the 
victim  had  been  found  and  identified  ;  but  modern  relaxa- 
tions of  this  rule  have  been  admitted  until,  at  present,  both 
the  death  and  its  cause  may  be  established  by  circumstantial 
evidence. 

Read:  Wharton,  Criminal  Law,  §  311; 
McClain.  Criminal  Law,  §§  396-398; 
Rice,  Criminal  Evidence,  §§  293-299. 

§  639.     Of  Djring  Declarations. 

A  peculiar  sjx-cies  of  evidence,  admissil)le  in  prosecutions  for 
unlawful  homicide,  consists  of  the  dying  declarations  of  the 
victim  concerning  the  act  of  killing,  and  the  ])erson  by  whom 
it  was  committed.  A  di/iug  dcdnraiion  must  be  made  by  the 
person  whose  death  is  the  subject  of  investigation;  not  by  a 
mere  spectator,  nor  even  by  another  person  who  is  dnng  from 
the  same  homicidal  act.  The  declarant  must,  at  the  time  he 
maile   tiu*   di-claration,    have   been   competent    to   testify   under 


604  ELEMENTARY   LAW  §  539 

oath ;  and  the  facts  declared  by  him  must  have  been  such  that, 
if  he  had  been  called  as  a  witness  in  the  case,  he  would  have 
been  allowed  to  state  them.  He  must,  when  making  the  declara- 
tion, have  been  satisfied  in  his  own  mind  that  he  was  about  to 
die,  and  any  circumstances  which  indicate  that  he  then  enter- 
tained the  faintest  expectation  of  recovery  will  render  the  dec- 
laration inadmissible.  How  long  he  may  survive  after  he  has 
made  the  declaration  is  immaterial,  provided  the  declaration  itself 
was  made  under  a  conviction  of  impending  death.  The  declara- 
tion must  relate  to  the  cause  of  death  and  the  person  killing, 
and  may  embrace  all  the  details  of  the  transaction  of  which 
the  homicidal  act  was  a  part,  but  must  not  narrate  past  occur- 
rences nor  express  mere  opinions.  It  may  be  made  in  writing 
or  by  parol ;  may  consist  of  a  connected  statement,  or  of  answers 
to  leading  questions;  and  may  be  conveyed  by  words  or  signs, 
but  must  be  intelligible  and  complete  enough  not  to  leave  the 
meaning  of  the  declarant  open  to  conjecture.  It  need  not  be 
delivered  in  the  presence  of  a  magistrate  nor  of  any  other  par- 
ticular person,  nor  be  reduced  to  writing  by  the  hearer;  but,  if 
not  written,  those  who  testify  to  it  in  court  must  be  able  to  repeat 
it  as  it  was  delivered,  and  not  simply  give  their  impressions  as  to 
its  tenor  and  effect.  Before  the  evidence  of  such  a  declaration  is 
presented  to  a  jury  the  judge  must  scrutinize  its  origin,  authen- 
ticity, and  contents,  and  determine  whether  any  and  how  much 
of  it  is  entitled  to  admission.  In  prosecutions  for  crimes  other 
than  unlawful  homicide,  although  such  crimes  resulted  in  death, 
evidence  of  these  dying  declarations  is  excluded. 

Rem.  This  species  of  evidence,  though  not  given  under  oath 
nor  subject  to  cross-examination,  is  permitted  because  of  the 
necessity  of  the  case,  and  because  the  solemnity  of  his  known 
approaching  death  is  presumed  to  clothe  the  statement  of  the  vic- 
tim with  a  sanctity  equal  to  that  which  attaches  to  sworn  testi- 
mony in  open  court.  These  declarations  are  generally  offered 
by  the  State  to  show  the  guilt  of  the  accused,  and  decisions  may 
be  found  asserting  that  dying  declarations  exculpating  him  are 
inadmissible.  But  such  a  ruling  rests  upon  no  logical  or  legal 
principle,  and  is  contradicted  by  superior  authorities. 

Read  :  3  Russell  on  Crimes,  pp.  388-397 ; 

Archbold,  Criminal  Procedure,  pp.  428-435; 
Roscoe,  Criminal  Evidence,  pp.  33-39; 


§  540  CRIMES   AGAINST   PERSONS  605 

Underbill,  Criminal  E\idence,  §§  102-114; 
Wharton,  Criminal  Evidence,  §§  276-304; 
McClain,  Criminal  Law,  §§  425—431; 
Rice,  Criminal  Evidence,  §§  330-341. 


§  540.     Of  Mayhem. 

Mni/hrm  is  the  intentional  and  malicious  injury  or  destruction 
of  the  limbs  of  another,  whereby  he  is  rendered  less  capable  of 
defending  himself  against  or  annoying  his  adversary.  Under 
the  limb.s  are  included  the  hands,  feet,  eyes,  front  teeth,  and  the 
male  generative  organs  on  whose  integrity  it  is  sometimes  sup- 
posed that  personal  courage  and  energy  largely  depend.  May- 
hem may  be  committed  by  cutting,  burning,  striking,  shooting, 
throwing  corrosive  fluids,  or  any  other  method  which  will  pro- 
duce the  physical  effect.  But  whatever  method  be  employed 
the  purpose  of  the  offender  must  be,  and  must  be  proved  to  be, 
to  maim  and  disfigure  his  victim  and  not  simply  to  beat  him 
either  unlawfully  or  in  self-defense.  Hence  wounds  inflicted  by 
accident,  or  in  the  ordinary  course  of  a  combat,  or  even  in  a 
premeditated  assault,  if  mayhem,  as  such,  was  not  intended, 
although  the  wounds  may  result  in  the  loss  or  destruction  of  a 
limb,  do  not  amount  to  mayhem  whatever  other  crime  of  greater 
or  less  magnitude  they  may  involve.  The  statement,  some- 
times made,  that  the  malicious  intent  may  be  presumed  from 
the  fact  of  mayhem,  is  true  only  where  the  character  of  the 
act  and  the  circumstances  which  attend  it,  as  distinguished 
from  its  consequences,  aiford  reasonable  ground  for  that  pre- 
sumption. 

Revi.  In  certain  States  mayhem  is  extended  by  local  statutes 
to  cover  injuries  wiiich  disfigure  the  Ixxiy,  as  well  as  those  which 
impair  its  fighting  powers.  In  some  States  also  any  unlawful 
maiming  or  disfigurement  is  mayhem,  whether  or  not  it  is 
prompted  by  a  malicious  intent. 

Read:  4  Bl.  Com.,  pp.  2()r)-20.S; 

Ilawloy,  Criminal  Law,  pp.  l()7-lfi9; 

Desty,' Criminal  Law,  §§  132-132 />; 

May,  Law  of  Crimes.  §  217; 

Clark  and  Mar.sliall.  Criminal  Law,  §§  221-223; 

Clark,  Criminal  Law  (TilTany  Ed.),  §§  77,  7S; 

3  Russell  on  Crimes,  |)p.  277,  27.S; 

Archbold,  Criminal  Procedure,  pj).  870-881; 


606  ELEMENTARY  LAW  §§541,  542 

2  Bishop,  Criminal  Law,  §§  1001-1008; 
Bishop,  Statutory  Crimes,  §  316; 
Wharton,  Criminal  Law,  §§  581-584; 
McCIain,  Criminal  Law,  §§  432-435. 


§  541.     Of  Battery. 

Battery  is  the  infliction  of  any  unlawful  physical  violence  upon 
the  person  of  another.  Any  wrongful  act,  however  slight, 
whereby  either  the  wrongdoer  or  his  instrument  of  wrongdoing 
is  brought  into  contact  with  the  body  of  another,  or  with  any- 
thing so  connected  with  his  body  as  to  be  legally  identified  there- 
with, is  a  battery.  The  purpose  and  intent  in  this  crime  are 
immaterial.  If  the  violence  is  voluntary,  and  is  neither  justified 
nor  excused  by  law,  the  act  is  battery.  When  severe  injuries 
result  from  battery  the  legal  gravity  of  the  crime  may  be  in- 
creased, as  well  as  the  penalty  imposed  on  the  offender. 

Rem.  The  instrument  by  which  a  battery  is  committed  may 
be  and  remain  under  the  control  of  the  wrongdoer  until  the  bat- 
tery is  completed,  —  as  where  he  uses  a  club  or  dagger ;  or  the  in- 
strument may  be  set  in  motion  by  him  and  then  passing  from  his 
control,  but  following  the  impulse  and  direction  he  has  given  it, 
may  proceed  through  space  to  accomplish  his  designs,  —  as 
where  he  fires  a  bullet,  sends  poison  by  the  mail,  or  incites  a 
ferocious  animal  to  make  the  attack.  In  both  these  cases  the 
battery  is  equally  his  act,  however  long  the  interval  before  it 
terminates  upon  his  victim. 

Read:  4  Bl.  Com'.,  pp.  216-218; 

Hawley,  Criminal  Law,  pp.  154-162; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §§  81-83; 

Kenney,  Criminal  Law,  pp.  142-150; 

2  Bishop,  Criminal  Law,  §§  22-41  a,  69-72  a; 

Wharton,  Criminal  Law,  §§  603-640; 

McClain,  Criminal  Law,  §§  230-253. 

§  542.     Of  Criminal  Assault. 

A  criminal  assault  is  an  intentional  attempt  to  do  unlawful 
physical  violence  to  another,  coupled  with  a  present  ability  to 
carry  such  intent  into  execution.  To  constitute  this  crime  there 
must  coexist  the  intention,  the  capability,  and  the  external  en- 
deavor to  commit  a  battery;  and  the  place  of  none  of  these  ele- 
ments is  supplied  by  any  fear  or  alarm  of  the  person  assaulted. 


§  543         CRIMES  AGAINST  PERSONS  607 

A  criminal  assault  cannot  be  committed  by  mere  negligence, 
nor  by  an  act  of  violence  performed  at  the  request  of  the  victim 
in  order  to  achieve  a  lawful  purpose.  An  assault  may  be  aggra- 
vated in  guilt  as  well  as  penalty  by  the  official  character  of  the 
person  assaulted,  the  place  where  the  assault  occurs,  or  the 
specific   intent   with  which   it   is   committed. 

Rem.  This  crime  is  not  to  be  confounded  with  a  simple  as- 
sault which  is  a  mere  private  wrong,  and  consists  in  the  mani- 
festation by  acts  of  a  present  purpose  to  commit  a  battery,  though 
there  may  be  no  actual  ability  to  carry  the  intent  into  effect ; 
nor  with  apparent  assaults  which  excuse  the  exercise  of  force  in 
self-defence,  or  alarm  the  victim  without  sufficient  actual  cause. ^ 
Thus  to  fire  a  pistol  near  to  another,  but  not  at  him,  with  the 
design  to  scare  him ;  or  to  point  at  him  an  unloaded  gun,  though 
he  may  believe  it  to  be  loaded ;  or  to  level  a  loaded  firearm  upon 
him,  but  at  too  great  a  distance  for  the  shot  to  injure  him,  —  are 
not  criminal  assaults,  though  they  may  form  the  basis  of  a  civil 
action,  or  justify  a  ft)rcible  resistance.  The  character  of  an  as- 
sault, whether  criminal  or  civil,  is  not  changed  by  the  annexation 
to  it  of  a  condition  with  which  the  person  assaulted  is  under  no 
legal  obligation  to  comply,  —  as  where  the  assailant  offers  to  de- 
sist provided  the  victim  will  submit  to  certain  terms.  But  if  the 
condition  is  predicated  of  the  circumstances  or  occasion,  and 
demands  no  action  or  forbearance  on  the  part  of  the  victim,  it 
may  negative  the  intention  to  do  violence,  and  so  disprove  an 
essential  element  of  the  crime. 

Read:  Desty,  Criminal  Law,  §§  130-130  c; 
May,  Law  of  Crimes,  §§  204-216; 
Clark  and  Marshall,  Criminal  Law,  §§  197-220; 
Kenney,  Criminal  Law,  pp.  133-142; 
3  Russell  on  Crimes,  pp.  304-320; 
Archbold,  Criminal  Procedure,  pp.  907-927; 
2  Bishop,  Criminal  Law,  §§  42-62; 
Wharton,  Criminal  Law,  §§  645  rf-652  a; 
McClain,  Criminal  Law,  §§  254-262. 

§  643.     Of  Assaults  Aggravated  by  a  Specific  Intent. 

All  the  nujre  lieiiious  crinuvs  against  the  jiersons  of  individuals 
include  a  criminal  jissault,  and  when  an  assault  is  committed  with 
the  intent  thereby  to  perpetrate  these  crimes  the  guilt  of  the 
actor  is  only  le.ss  than  if  his  jnirpose  had  succeeded.  Such  assaults 
are  attempts  to  perpetrate  the  greater  criminal  act,  and  fall  short 
of  it  through  some  condition  or  occurrence  over  which  the  actor 


608  ELEMENTARY  LAW  §  543 

has  no  conscious  and  immediate  control.  Thus  an  assault  with 
intent  to  kill  is  an  endeavor  to  commit  manslaughter;  an  as- 
sault with  intent  to  murder  is  a  deliberate  and  malicious  effort 
to  take  human  life;  an  assault  with  intent  to  ravish  or  to  rob 
would  have  been  rape  or  robbery  if  the  design  of  the  assailant 
had  not  been  in  some  manner  frustrated.  In  all  such  cases  the 
intent  is  a  true  specific  intent,  and  is  a  distinct  and  essential 
ingredient  in  the  crime  wliich  must  be  proved  by  competent  evi- 
dence like  any  other  matter  of  fact.  Such  intent  may  be  inferred 
from  the  acts  performed,  or  from  previous  threats  or  prepara- 
tions, but  must  be  shown  to  have  embraced  in  purpose  all  the 
elements  of  the  greater  crime.  Hence  there  is  no  assault  with 
intent  to  ravish  unless  the  assailant  intended  to  overcome  by 
every  necessary  force  any  resistance  which  might  be  offered  by 
his  victim;  no  assault  with  intent  to  murder  unless  the  facts 
disclose  that  the  attack  was  made  with  malice  aforethought. 
No  such  intent  can  ever  exist  in  the  mind  of  a  sane  person  who 
knows  that  he  is  unable  to  commit  the  greater  crime;  but 
obstacles  of  which  he  has  no  knowledge  or  adequate  appreciation, 
although  in  fact  they  ensure  the  failure  of  liis  enterprise,  are  not 
inconsistent  with  the  evil  purpose  which  gives  the  act  its  aggra- 
vated character. 

Rem.  In  reference  to  these  assaults,  as  well  as  other  attempts, 
one  question  of  great  difhculty  sometimes  arises  which  has  met 
with  different  replies.  It  is  this,  —  whether  a  person  can,  in  law, 
intend  to  do  an  act  which  is  inherently  impossible  when  it,  at  the 
time,  appears  possible  to  him.  For  example,  can  a  man  assault, 
with  intent  to  commit  a  rape,  another  man  who  is  disguised  as  a 
woman  and  who  is  believed  by  the  assailant  to  be  a  woman  ?  or 
can  one  person  assault  another  with  intent  to  rob  when  the  one 
assaulted  possesses  nothing  of  which  he  could  be  robbed?  To 
this  question  some  authorities,  holding  that  ability  must  concur 
with  intent  in  order  to  constitute  a  criminal  assault,  reply  in  the 
negative.  Others,  measuring  the  guilt  of  the  actor  by  the  condi- 
tion of  his  mind  and  will,  hold  him  responsible  as  if  the  crime 
intended  could  have  been  committed. 

Read:  Hawley,  Criminal  Law,  pp.  162,  163; 
Desty,  Criminal  Law,  §§  131-131  e; 
Archbold,    Criminal    Procedure,    pp.    863-876,    885-896,    927-934, 

1010-1014; 
Wharton,  Criminal  Law,  §§  576,  577,  640o-645c; 
McClain,  Criminal  Law,  §§  203-281   462-465. 


§  544  CRIMES  AGAINST  PERSONS  609 

§  544.     Of  Rape. 

Rape  is  the  unlawful  carnal  knowledge  of  a  woman  without 
her  consent.  Carnal  knowledge  consists  in  the  actual  penetration, 
to  some  extent,  of  the  sexual  organs  of  the  female  by  the  sexual 
organ  of  the  male,  with  or  without  seminal  emission ;  and  is  com- 
plete in  the  eye  of  the  law  whatever  the  distance  or  duration  of 
such  penetration  may  be.  Carnal  knowledge  is  unlawful  when- 
ever it  takes  place  between  a  man  and  a  woman  who  is  not  at 
the  time  his  lawful  wife.  An  unlawful  carnal  knowleilge  is  a 
rape  unless  the  woman  intelligently  and  voluntarily  consents 
thereto.  If  she  does  not  understand  the  nature  of  the  act,  either 
through  defect  of  intellect  or  temporary  unconsciousness,  or 
imposition  on  the  part  of  the  ravisher ;  or  if  her  will  is  overcome 
by  force  or  fear  or  drugs,  —  her  physical  submission  does  not 
prove  consent.  It  has  also  been  held  that,  although  she  knows 
the  nature  of  the  act,  if  her  acquiescence  is  obtained  by  her 
assailant  by  falsely  personating  her  husband,  she  does  not  con- 
sent, because  consent  to  carnal  knowledge  involves  not  only 
consent  to  the  act  itself  but  to  the  person  by  whom  it  is  to  be 
performed.  Where,  however,  she  voluntarily  and  intelligently 
permits  the  intercourse,  yielding  to  persuasion  or  to  deceitful 
promises  or  to  fraudulent  representations  other  than  as  to  the 
nature  of  the  act  or  the  person  of  the  tempter,  the  carnal  knowl- 
edge is  not  rape,  although  she  may  have  at  first  refused  and  have 
manifested  her  opposition  by  forcible  resistance.  The  proper 
evidence  of  her  want  of  consent,  and  that  which  the  law  expects 
her  to  exhibit  under  ordinary  circumstances,  is  the  persistent 
physical  defence  of  her  person  until  she  is  overpowered  by 
superior  force  ;  and  exceptions  to  this  requirement  are  recognized 
only  when  equal  proof  of  the  absence  of  consent  is  afforded  by 
other  circumstances  which  demonstrate  her  lack  of  knowledge 
or  her  non-concurrence  in  the  act. 

Rem.  Females  below  a  certain  age,  now  generally  fixed  by 
local  statutes,  are  conclusively  presumed  to  be  incapable  of  con- 
senting to  unlawful  sexual  acts,  and  intercourse  with  them  out- 
side of  wedlock  is,  therefore,  always  raj)e  even  when  it  takes  j)lace 
at  the  solicitation  of  the  woman,  and  in  the  belief  that  she  is  old 
enough  to  give  cons(Mit.  Where  the  assailant  is  a  boy  under  four- 
teen his  physical  capacity  for  sexual  intercourse  must  be  afhrnia- 
tively  proved. 

39 


610  ELEMENTARY  LAW  §  545 

Read:  4  Bl.  Com.,  pp.  210-212; 

Hawley,  Criminal  Law,  pp.  169-173; 
Desty,  Criminal  Law,  §§  133-134  a; 
May,  Law  of  Crimes,  §§  241-244; 
Clark  and  Marshall,  Criminal  Law,  §§  293-302; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §§  79,  80; 
Kenney,  Criminal  Law,  pp.  151-154; 
3  Russell  on  Crimes,  pp.  223-232 ; 
Archbold,  Criminal  Procedure,  pp.  994-1003; 
2  Bishop,  Criminal  Law,  §§  1107-1136; 
Wharton,  Criminal  Law,  §§  550-564; 
McClain,  Criminal  Law,  §§  438-451. 


§  645.     Of  Rape:   the  Credibility  of  the  Victim  as  a  Witness. 

The  unlawful  carnal  knowledge  of  any  woman  without  her 
consent  is  a  rape,  whatever  may  have  been  her  habits  as  to 
chastity  or  her  previous  sexual  relations  toward  her  ravisher. 
On  the  other  hand,  the  law  recognizes  that  sexual  appetites  exist 
in  females  as  well  as  in  males,  and  that  sexual  acts  even  between 
unmarried  persons  are,  in  most  cases,  on  both  sides  intelligent 
and  voluntary.  Hence,  as  in  prosecutions  for  rape,  the  woman 
is  frequently  the  sole  available  witness,  it  necessarily  regards  her 
testimony,  especially  as  to  the  matter  of  consent,  with  grave 
suspicion;  and  requires  corroboration  of  her  denial  of  consent 
either  in  her  general  character  or  her  contemporaneous  conduct. 
If  she  is  of  bad  repute ;  or  if  she  concealed  the  injury  after  she 
had  an  opportunity  to  complain ;  or  if  the  place  where  she  alleges 
it  to  have  been  committed  were  public  and  inhabited  and  she 
made  no  outcry,  —  these  circumstances  reflect  serious  discredit 
on  her  story.  But  if  her  reputation  is  good ;  if  she  presently  dis- 
closed the  offence  and  made  pursuit  of  the  offender;  if  she  showed 
signs  and  marks  of  the  injury;  if  the  place  described  by  her  as 
the  scene  of  the  occurrence  is  remote  from  observation;  and  if 
the  alleged  offender  afterwards  concealed  himself,  —  her  testi- 
mony is  accorded  great  weight,  and  may  of  itself  be  sufficient 
for  conviction. 

Rem.  In  spite  of  the  importance  naturally  attached  to  the 
testimony  of  the  alleged  victim  it  must  always  be  remembered 
that  rape  is  a  grievous  crime,  that  its  punishment  is  most  severe, 
that  accusations  of  it  are  often  resorted  to  for  purposes  of  ex- 
tortion or  revenge,  and  that  legal   history  presents  many  cases 


§  546  CRIMES   AGAINST  PERSONS  611 

where  convictions  upon  such  evidence  have  afterwards  been 
shown  to  have  been  erroneous  and  unjust.  Wise  and  careful 
judges,  therefore,  usually  endeavor  to  prevent  them,  unless  the 
testimony  of  the  woman  is  substantially  corroborated  by  other 
proof,  over  the  fabrication  of  which  she  could  have  had  no 
control. 

Read:  4  Bl.  Com.,  pp.  213-216; 

3  Russell  on  Crimes,  pp.  232-236; 

Archbold,  Criminal  Procedure,  pp.  1003-1010; 

Underbill,  Criminal  Evidence,  §§  407-418; 

Wharton,  Criminal  Law,  §§  565-568; 

McClain,  Criminal  Law,  §§  455-461. 


§  546.     Of  Abduction. 

Abduction  is  the  unlawful  removal  by  force  or  fraud,  from  the 
control  of  her  parents  or  guardians,  of  a  female  not  yet  old 
enough  to  marry  without  their  consent,  for  purposes  of  marriage, 
prostitution,  or  concubinage.  The  essence  of  this  crime  con- 
sists in  the  unlawful  acquisition  of  influence  and  power  over  a 
female  infant  in  order  to  lead  her  into  sexual  relations  either 
with  the  abductor  or  with  some  other  person.  It  differs  from 
rape  in  that  it  contemplates  a  voluntary  surrender  by  her  of  her 
person,  when  deprived  of  the  protection  of  her  family  and  de- 
pendent on  the  good  will  of  her  abductor.  It  differs  from  seduc- 
tion in  that  the  latter  operates  through  promises  or  persuasion, 
and  does  not  require  force  or  its  equivalent  in  fraud.  The 
voluntary  elopement  of  a  girl  from  home  with  a  lover  or  seducer 
is  not  abduction,  unless  she  is  so  young  that  her  consent  is  pre- 
sumed by  law  to  be  impossible. 

Rem.  This  offence  was  originally  prohibited,  in  a  somewhat 
different  form,  by  an  ancient  English  statute,  and  is  now  for- 
bidden by  local  laws  in  this  country.  These  laws  vary  from  one 
another  in  reference  to  the  age  of  the  woman,  the  method  of  her 
removal,  its  specific  purpose,  her  previous  chastity,  and  the  place 
to  which  she  is  conveyed. 

Read:  4  Bl.  Com.,  pp.  208-210; 

Hawley,  Criminal  Law,  pp.  16.'>-167; 

Desty,  Criminal  Law,  §$  136-137  o; 

May,  Law  of  Crimos.  §  108; 

Clark  and  Marstiall,  Criminal  Law,  §§  230-232; 

Clark.  Criminal  Law  (Tiffany  Ed.),  §§  86,  87; 

Kenney,  Criminal  Law,  p.  151; 


612  ELEMENTARY  LAW  §  547 

Archbold,  Criminal  Procedure,  pp.  988-993; 
1  Bishop,  Criminal  Law,  §§  533-542; 
Wharton,  Criminal  Law,  §§  586-589; 
McClain,  Criminal  Law,  §§  1100-1108. 


§  547.     Of  Seduction. 

Seduction  is  the  procurement,  by  promises  or  persuasion,  of 
unlawful  sexual  intercourse  with  an  unmarried  woman  of  pre- 
viously chaste  character.  In  this  crime  fraud  and  force  are 
wanting.  The  parties  meet  at  first  on  equal  ground,  but  through 
the  influence  obtained  by  the  man  over  the  woman  his  persua- 
sions, flattery,  or  promises  prevail  over  her  chaste  instincts  and 
resolutions,  and  she  voluntarily  vields  herself  to  his  desires.  The 
woman  may  be  a  spinster,  a  widow,  or  a  divorced  wife;  if  she 
were  a  married  woman  the  crime  would  be  adultery.  She  must 
also  at  the  time  be  chaste,  but  her  chastity  may  be  either  virginal, 
or  that  of  a  reformed  prostitute;  and  it  must  be  real  and  not 
merely  pretended  or  reputed,  since  if  her  instincts  and  desires  are 
lustful  it  is  to  these,  and  not  to  the  seduction,  that  her  downfall 
is  to  be  attributed.  She  must  be  of  the  age  of  consent,  and  being 
above  that  may  be  of  any  age.  Her  previous  chastity  must  be 
proved  by  the  State,  and  may  be  contradicted  by  the  defence 
by  any  proper  evidence.  If  she  is  the  only  witness  for  the  State 
her  testimony  requires  corroboration,  and  this  may  be  afforded 
by  circumstances  which  would  support  her  accusation  if  the 
charge  were  rape.  A  male  infant  may  be  guilty  of  this  crime  if 
he  is  old  enough  to  possess  criminal  capacity,  and  able  to  per- 
form the  sexual  act.  The  subsequent  lawful  marriage  of  the  par- 
ties condones  the  injury  on  her  part,  and  by  closing  her  lips  against 
her  husband  generally  puts  an  end  to  the  criminal  proceedings. 

Rem.  In  some  of  our  States  the  species  of  persuasion  which 
are  to  be  deemed  adequate  to  overcome  virtue  are  defined  by 
law,  —  such  as  a  promise  to  marry ;  in  others,  the  question 
whether  the  persuasion  was  sufficient  to  cast  upon  the  man  the 
responsibility  for  her  conduct  is  left  to  be  determined  by  the  jury. 
The  off"er  of  a  money  compensation  for  a  future  sexual  inter- 
course is  not  seduction. 

Read:  Hawley,  Criminal  Law,  pp.  282-286; 
Desty,  Criminal  Law,  §§  135-135  6; 
May,  Law  of  Crimes,  §  197; 


I 


§  548  CRIMES    AGAINST    PERSONS  613 

Clark  and  Marsliall,  Criminal  Law,  §  464; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §  128; 
Kenney,  Criminal  Law,  pp.  154,  155; 
Bishop,  Statutory  Crimes,  §§  625-652; 
Wharton,  Criminal  Law,  §§  1756-1765; 
McCIain,  Criminal  Law,  §§  1109-1119. 


§  648.     Of  Grimes  against  Personal  Health. 

Anv  wrongful  action  or  omission  which  is  prejudicial  to  the 
public  health  is  a  public  nuisance,  and  punishable  as  a  crime. 
It  is  also  sometimes  stated,  as  if  it  were  the  necessary  antithesis 
of  the  foregoing  proposition,  that  no  injury  to  health  can  be  a 
crime  unless  it  affects  the  public  as  distinguished  from  one  or 
several  individuals.  This  is  neither  logically  nor  legally  correct. 
All  health  is  the  health  of  individual  men  and  women,  and  all 
injuries  to  health  are  injuries  to  individual  men  and  women,  and 
are  of  the  same  intrin.sic  nature  and  produce  the  same  physical 
consequences  whether  the  individuals  suffering  from  them  are 
few  or  many.  The  law  may  thus  as  appropriately  and  justly 
forbid  and  punish  injuries  to  the  health  of  one  individual  as 
those  wliich  inflict  pain  or  discomfort  on  a  multitude.  And 
this  it  does  though  under  a  different  name  and  with  a  narrower 
range  of  remedies.  Thus  one  who  wilfully  adulterates  food  or 
medicine  and  gives  it  to  another,  or  transmits  it  to  him  through 
an  agent,  is  guilty  of  an  assault;  though  if  he  had  distributed  it 
to  many  his  crime  would  have  been  a  public  nuisance.  The 
same  princi{)le  would  properly  apply  to  any  wilful  and  malicious 
action  which  .sets  in  motion  forces  whose  disagreeable  or  morbific 
energies  impair  the  health  of  any  individual,  although  the  action 
was  not  really  an  assault  but  answered  rather  to  the  definition  of 
a  private  nuisance.  Particular  offences  belonging  to  this  class 
of  crimes  are,  for  the  most  part,  defined  and  prohibited  by  local 
statutes  and  police  regulations. 

Rem.  Negligent  omissions,  however,  although  made  crimes 
when  they  affect  the  pul)lic  health  becau.se  the  public  have  no 
civil  action  whereby  they  can  suppress  them,  are  not  tainted 
with  that  wilfulness  and  malice  which  alone  invokes  the  ven- 
geance of  tlic  State;  and,  therefore,  unless  gro.ss  and  wanton, 
are  generally  left  to  private  methods  of  prevention  and  redress. 


614  ELEMENTARY  LAW  §§  549,  550 

§  649.     Of  Grimes  against  Personal  Reputation. 

Injuries  to  reputation,  whether  civil  or  criminal,  consist  in 
libel,  slander,  or  malicious  prosecution.  A  criminal  libel  is  an 
offence  of  double  aspect,  at  once  provoking  a  breach  of  the  pub- 
lic peace  and  inflicting  a  malicious  injury  upon  an  individual. 
Although  usually  prosecuted  as  a  breach  of  the  peace  its  unv^^ar- 
rantable  attack  upon  the  honor  and  fair  fame  of  the  individual 
is  not  wholly  ignored ;  and  where  in  view  of  its  remote  damage 
to  the  public  its  penalty  might  be  remitted,  its  enormity  as  a 
false  and  malicious  defamation  of  a  helpless  victim  sometimes 
demands  a  serious  punishment.  Slander,  though  principally  a 
private  wrong,  is  often  punishable  as  a  mode  of  stirring  up 
contention  and  strife,  and  in  this  aspect  is  a  breach  of  the 
peace,  rather  than  an  injury  to  personal  reputation.  Malicious 
prosecution  similarly  affords  a  ground  for  a  civil  action,  and  is 
not  commonly  regarded  as  a  crime,  unless  when  prompted  by 
actual  malice.  A  malicious  conspiracy  to  injure  the  reputation 
of  another  is  always  criminal. 

Rem.  Offences  against  personal  reputation,  which  originate  in 
actual  malice  and  ill-will  against  the  individual  whom  they  at- 
tack, differ  from  criminal  assault  only  in  the  physical  action 
by  which  their  malice  is  expressed,  and  may  be  as  productive  of 
lasting  injury  as  any  battery  or  mayhem  perpetrated  on  their 
victim.  The  tendency  of  modern  law  is  to  prevent  such  injuries 
by  giving  to  the  victim  an  efficient  and  inexpensive  remedy, 
without  compelling  him  to  resort  to  the  tedious  and  costly  redress 
of  a  civil  action.  Hence,  almost  every  possible  wrong  of  this 
character  is  now  covered  by  the  criminal  legislation  of  our  differ- 
ent States,  and  the  pursuit  of  private  remedies  for  them  has 
largely  disappeared  from  our  courts. 

Read:  Dwight,  Law  of  Persons  and  Property,  pp.  91-93. 

§  650.     Of  False  Imprisonment. 

False  Imprisonment  is  the  unlawful  detention  of  the  person 
of  another.  Any  restraint  placed  upon  the  freedom  of  another 
by  compelling  him  to  remain  quiet  when  he  desires  to  move, 
or  to  move  in  one  direction  or  method  when  he  wills  to  move  in 
another,  is  detention,  whether  the  restraint  is  accomplished  by 
force  or  threats,  or  any  other  form  of  coercion  or  duress.    It  may 


§  551  CRIMES    AGAINST    PERSONS  615 

occur  in  a  building  or  other  enclosure,  or  on  the  open  highway ; 
it  may  endure  for  a  moment  or  indefinitely ;  it  may  or  may  not 
produce  some  actual  loss  or  injury.  Detention  is  unlawful  when- 
ever it  is  not  justified  as  the  execution  of  legal  process  or  as  the 
assertion  of  a  legal  right ;  and  the  burden  of  proving  such  justi- 
fication rests  on  the  detainer.  All  persons  engaged  in  the  deten- 
tion, whether  as  participators  in  the  act  or  as  its  procurers,  are 
guilty  of  the  offense  and  are  liable  to  punishment. 

Rem.  This  crime  involves  the  same  physical  acts  and  their 
consequences  as  the  private  wrong  of  false  imprisonment.  To 
be  a  crime,  however,  the  act  of  detention  must  be  wilful  and 
malicious,  and  not  accidental  nor  the  result  of  a  bona  fide  mis- 
take on  the  part  of  the  detainer.  As  the  force  used  in  the  deten- 
tion generally  amounts  to  an  assault,  and  sometimes  to  a  battery, 
prosecutions  for  it  are  commonly  instituted  under  those  names. 

Read:  4  Bl.  Com.,  p.  218; 

Hawley,  Criminal  Law,  pp.  163,  164; 

Desty,  Criminal  Law,  §§  139-139  a; 

May,  Law  of  Crimes,  §  240 ; 

Clark  and  Marsliall,  Criminal  Law,  §§  224-237; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §  84; 

Kenney,  Criminal  Law,  p.  150; 

Archbold,  Criminal  Procedure,  pp.  946-948; 

2  Bishop,  Criminal  Law,  §§  746-749; 

Wharton,  Criminal  Law,  §  591; 

McClain,  Criminal  Law,  §§  485-488. 


§  651.     Of  Kidnapping. 

Kidnapping  is  an  aggravated  form  of  false  imprisonment. 
The  aggravation  consists  in  the  removal  of  the  person  unlaw- 
fully detained  from  his  own  State  or  country,  and  from  the 
jurisdiction  and  protection  of  its  laws.  The  removal  may  be 
accomplished  by  force  or  threats  constraining  the  person  against 
his  will,  or  by  fraudulent  representations  inducing  an  immature 
or  weak-minded  person  to  acquiesce  in  the  removal.  This  crime 
has  sometimes  been  treated  by  the  law  as  a  capital  offence,  some- 
times as  a  grave  felony,  and  sometimes  as  a  simple  misdemeanor. 
The  purpose  of  the  removal,  —  as  whether  it  be  to  exact  a  ran- 
som, or  to  sell  into  slavery,  or  to  subject  to  prostitution,  or  to 
obtain  po.ssession  of  a  child  or  wife  to  whose  society  the  remover 
has  a  natural  if  not  a  legal  right,  —  determines  the  enormity  of 


616  ELEMENTARY   LAW  §  552 

the  offence  on  moral  grounds,  and  should  be  recognized  in  pre- 
scribing its  punishment. 

Rem.  The  name  of  " kidna'p'pmg"  is  often  applied  to  any 
form  of  child-stealing  without  reference  to  the  purpose  or  to  the 
place  of  removal ;  thus  making  the  meaning  of  the  term  equiv- 
alent to  that  of  false  imprisonment.  The  real  essence  of  the 
crime  here  defined,  however,  consists  in  the  placing  of  the  victim 
beyond  the  reach  of  the  laws  of  his  own  State,  and  thereby  de- 
priving him  of  the  protection  and  redress  to  which  he  is  entitled 
as  a  citizen. 

Read:  4  Bl.  Com.,  p.  219; 

Hawley,  Criminal  Law,  pp.  164,  165; 

Desty,  Criminal  Law,  §§  1.38-138  a; 

May,  Law  of  Crimes,  §  199; 

Clark  and  Marshall,  Criminal  Law,  §§  228,  229; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §  85; 

Kenney,  Criminal  Law,  p.  151; 

Archbold,  Criminal  Procedure,  pp.  982-987; 

2  Bishop,  Criminal  Law,  §§  750-756; 

Wharton,  Criminal  Law,  §  590; 

McClain,  Criminal  Law,  §§  489-491. 


§  552.     Of  Boycotting. 

Wrongs  against  personal  liherty  may  be  committed  by  any 
conduct  toward  another  which  interferes  with  his  enjoyment 
of  the  lawful  right  of  self-control  in  his  business  actions  and  for- 
bearances. Such  conduct  may  assume  many  forms  affecting 
the  use  of  capital,  the  exercise  of  talent,  the  application  of  labor, 
the  freedom  of  contract,  or  the  liberty  of  trade.  Subject  to  those 
restrictions  which  the  State  imposes  upon  all  its  citizens  for  the 
common  good,  every  person  has  the  right  to  apply  his  labor  and 
property  according  to  his  own  judgment;  and  the  protection 
of  this  right  often  requires  that  acts  preventing  its  enjoyment 
should  be  punished  as  crimes.  Hitherto,  offences  of  this  species 
have  generally  involved  some  form  of  conspiracy,  —  the  con- 
spirators agreeing  upon  certain  lines  of  conduct  intended  to 
force  their  victim  into  actions  or  forbearances  against  his  own 
desires  and  interests,  and  by  collectively  pursuing  these  lines 
of  conduct  inflicting  upon  him  some  unlawful  injury.  One  of 
the  most  recent  forms  of  this  offence  is  that  which  isolates  the 
victim  from  social  or  business  intercourse  by  inducing  other 


§  553  CRIMES   AGAINST  PROPERTY  617 

persons  to  avoid  him.  From  the  first  prominent  sufferer  through 
this  concerted  isolation  the  name  "Boycotting"  was  derived, 
which  in  the  absence  of  any  other  special  appellation  is  now 
used  to  denote  the  crime  itself. 

Rem.  Conspiracy  is  the  agreement  of  two  or  more  persons  to 
do  an  unlawful  act,  or  to  do  a  lawful  act  in  an  unlawful  manner. 
It  requires  a  concert  of  intent  and  will  between  the  conspirators, 
not  a  mere  coincidence  of  purpose  and  action.  Its  essence  re- 
sides in  the  combination  of  numbers  against  an  individual,  and 
the  oppression  and  public  disaster  which  might  result.  In  ex- 
amining the  authorities  on  this  subject  some  confusion  may  be 
avoided  by  keeping  in  mind  the  fact  that  the  character  of  a  con- 
spiracy is  determined  by  the  unlawful  purpose  to  which  the  con- 
certed action  is  directed,  and  not  by  the  particular  overt  acts 
performed  by  the  conspirators.  Thus  while  it  is  true  that  one 
man  may  innocently  persuade  another  to  join  a  labor  union,  or  to 
trade  at  a  certain  store,  or  not  to  engage  in  a  specific  employ- 
ment, it  does  not  follow  that  a  number  of  persons  can  lawfully 
unite  together,  and  through  the  use  of  such  persuasions  oppress 
and  injure  others  by  depriving  them  of  the  advantages  of  their 
ordinary  trade  and  labor.  The  difficulty  of  connecting  the  ap- 
parently innocent  overt  act  with  the  unlawful  purpose  by  suffi- 
cient evidence  does  not  affect  the  criminal  liability  which  attaches 
to  the  actors  when  such  connection  is  once  established. 

Read:  Andrews,  American  Law,  §§  679-681; 
Hawley,  Criminal  Law,  pp.  108-112. 


SECTION  IV 

OF    CRIMES    AGAINST    THE    PROPERTY    OF    INDIVIDUAL8 

§  553.     Of  Property  as  the  Subject  of  Crime. 

Property  rights,  although  in  their  nature  less  valuable  than 
personal  rights,  are  held  in  such  estimation  by  the  law  that 
many  injuries  thereto,  either  because  of  their  consequences  or 
their  malice,  are  regarded  as  public  wrongs.  Tliis  is  true  as 
well  in  reference  to  personal  property  as  to  real,  to  choses  in 
action  as  well  as  to  choses  in  possession.  There  is,  however, 
one  species  of  property  to  wiiich  the  law  attaches  a  peculiar 
sanctity,  namely,  the  habitation  of  the  citizen.  The  Enghsh- 
man's  house  has  always  been  considered  as  his  castle,  into  wliich 


618  ELEMENTARY  LAW  §  554 

without  his  permission,  or  due  process  of  law,  not  even  the 
king  could  enter;  and  his  rights  in  it  have  been  protected  not 
only  by  constituting  him  its  forcible  defender,  but  by  treating 
its  invasion  as  a  crime  of  unusual  gravity.  The  principal  crimes 
against  the  habitation,  now  forbidden  and  punished  by  our 
laws,  are  Arson  and  Burglary ;  those  of  less  gravity  consist  of 
some  form  of  Malicious  Mischief.  Crimes  against  other  prop- 
erty are  numerous  and  of  varied  character,  depending  in  many 
instances  upon  local  statutes. 

Rem.  Of  the  seven  common  law  felonies  still  recognized  by 
our  general  laws,  three  are  crimes  against  the  person,  —  to  wit. 
Murder,  Manslaughter,  and  Rape ;  and  four  are  crimes  against 
property,  —  to  wit.  Arson,  Burglary,  Robbery,  and  Theft.  Of 
these  four  the  first  two  are  crimes  against  the  habitation,  the 
other  two  are  crimes  against  personal  property.  The  attitude  ot 
the  law  toward  these  offences  is  manifest  from  the  fact  that,  with 
the  exception  of  trivial  cases  of  the  latter,  they  were  all  formerl}- 
punished  with  death. 

Read:  4  Bl.  Com.,  p.  220. 


§  554.     Of  Arson:  the  Unlawful  Burning. 

Arson  is  the  unlawful  burning  of  the  dwelling  house  of  another. 
To  constitute  a  burning  either  the  whole  house,  or  some  in- 
tegral part  thereof,  must  be  actually  destroyed  by  fire.  If  it  be 
merely  blackened  by  smoke  or  scorched  by  flame,  without  the  de- 
struction of  its  substance,  there  is  no  burning.  The  destruction 
by  fire  of  personal  property  contained  in  the  dwelling  is  not  a 
burning  of  the  house;  but  if  any  part  of  the  building,  however 
small,  suffers  the  disintegration  of  its  fibre  through  the  action 
of  the  fire  the  burning  is  complete,  though  the  fire  may  have 
endured  but  for  a  moment  and  have  then  gone  out  of  itself. 
Every  burning  is  unlawful  which  is  wilful,  and  is  not  in  pur- 
suance of  some  legal  right  or  duty. 

Rem.  An  involuntary  burning  by  negligence  or  accident  is  not 
arson ;  nor  is  a  wilful  burning  criminal  when  done  by  competent 
authority  in  order  to  suppress  a  general  conflagration,  or  sub- 
serve some  necessity  of  war.  But  a  burning  which  is  wilful  and 
without  authority  is  arson,  although  the  incendiary  did  not  intend 
to  destroy  the  house  which  is  actually  consumed,  —  as  when  the 


§  555  CRIMES   AGAINST  PROPERTY  619 

house  is  ignited  by  means  employed  to  perpetrate  a  different  fel- 
ony, or  where  a  person  wilfully  sets  on  fire  his  own  house  under 
circumstances  which  render  it  apparent  that  the  adjacent  houses 
of  other  owners  wn'Il  also  be  destroyed. 

Read:  4  Bl.  Com.,  p.  222; 

Hawley,  Criminal  Law,  pp.  176,  177; 

Desty,  Criminal  Law,  §  143  9; 

May,  Law  of  Crimes,  §§  249,  255; 

Clark  and  Marshall,  Criminal  Law,  §§  410,  414,  415; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §§  88-90; 

Kenney,  Criminal  Law,  pp.  157-160; 

2  Bishop,  Criminal  Law,  §§  8-10; 

Bishop,  Statutory  Crimes,  §§  310,  311; 

Wharton,  Criminal  Law,  §§  825-832; 

McClain,  Criminal  Law,  §  523. 

§  655.     Of  Arson:  the  Dwelling  House  of  Another. 

A  house  does  not  become  a  dwelling  house,  as  that  term  is 
employed  in  the  definition  of  arson,  until  it  has  been  used  as  a 
human  habitation.  It  ceases  to  be  such  when  its  use  for  that 
purpose  is  finally  abandoned.  The  temporary  absence  of  its 
occupants,  or  its  vacancy  during  a  change  of  tenancy,  does 
not  alter  its  character.  The  dwelling  house  includes  all  other 
buildings  which  immediately  communicate  therewith ;  or  are 
in  the  same  curtilage  or  common  fence;  or  are  within  a  rea- 
sonable distance  from  the  actual  dwelling  and  in  their  use  are 
subservient  thereto.  The  other  person,  to  whom  the  dwelling 
house  in  this  crime  must  belong,  is  he  in  whom  resides  the  legal 
right  of  occupation.  The  offence  being  one  against  habitation 
and  not  ownership,  a  man  cannot  commit  it  by  burning  a  house 
in  which  he  alone  has  the  right  to  abide,  whether  he  be  the 
owner  in  fee,  or  the  tenant  for  years,  or  a  mere  tenant  at  wall. 
But  a  burning  by  the  landlord  while  the  premises  are  in  the 
occupation  of  his  tenant,  or  by  a  servant  Hving  in  the  house  of 
his  master,  is  the  same  offence  as  if  the  incendiary  had  been 
a  stranger. 

Rem.  The  crime  of  arson  is  a  distinct  offence  from  the  unlaw- 
ful burnings  proliibitcd  by  statute  where  the  structures  burned 
are  not  human  habitations,  or  are  occupied  by  the  incendiary 
who  destroys  them  in  order  to  obtain  insurance  money,  or  for 
other  malicious  purposes,  and  which  are  often  called  "statutory 
arson." 


620  ELEMENTARY  LAW  §  556 

Read:  4  Bl.  Com.,  p.  221; 

Hawley,  Criminal  Law,  pp.  174-176; 

Desty,  Criminal  Law,  §§  143-143/;  

May,  Law  of  Crimes,  §§  250-254,  268;  '        ^\ 

Clark  and  Marshall,  Criminal  Law,  §§  411-413,  416; 
2  Bishop,  Criminal  Law,  §§  11-21; 
Wharton,  Criminal  Law,  §§  838-844; 
McClain,  Criminal  Law,  §§  517-522,  524-526. 


§  556.     Of  Burglary:  the  Breaking  and  Entering. 

Burglary  is  the  breaking  and  entering,  in  the  night  season, 
of  the  dwelling  house  of  another,  against  his  will,  and  Avith  the 
intent  to  commit  a  felony  therein.  The  breaking  consists  in 
the  removal  of  any  portion  of  the  house  which  is  relied  upon  by 
its  inhabitants  as  a  security  against  intrusion,  and  which  so  far 
as  the  nature  of  the  case  permits  actually  serves  as  such  security. 
Thus  the  opening  of  a  door  or  window  that  is  completely  shut ; 
or  the  enlargement  of  a  hole  previously  too  small  for  ingress ;  or 
the  removal  of  a  screen  or  netting  that  is  fastened  down;  or 
the  descent  through  a  passage  which,  like  a  cliimney,  cannot 
be  entirely  closed,  is  a  breaking;  but  not  the  raising  of  a  window 
which  is  partly  open ;  or  the  pushing  back  of  a  door  that  stands 
ajar;  or  the  climbing  through  an  unnecessary  but  sufficient 
aperture  already  made.  Breaking  does  not  always  involve 
the  exercise  of  physical  force,  —  for  to  procure  an  entrance 
by  craft  or  intimidation,  or  by  conspiring  with  an  inmate,  is 
no  less  a  breaking  than  if  the  entrance  were  achieved  by  violence. 
The  breaking  may  affect  either  the  outer  walls  of  the  house,  or 
the  interior  divisions  by  which  one  portion  of  the  house  is  sepa- 
rated from  the  others.  A  breaking  may  be  for  purposes  of 
egress  as  well  as  ingress,  for  one  who  enters  in  the  night  season 
with  felonious  intent,  without  breaking,  completes  his  crime  if 
also  in  the  night  season  he  breaks  in  order  to  get  out.  The 
entering  consists  in  the  insertion  into  the  interior  of  the  house, 
or  past  the  dividing  line  which  distinguishes  between  the  out- 
side and  the  inside,  of  the  whole  body  of  the  intruder  or  of  any 
part  thereof,  or  of  something  which  is  either  connected  with 
his  body  or  is  under  his  immediate  control,  and  is  attempted 
to  be  used  in  the  commission  of  the  proposed  felony.  Thus  the 
thrusting  of  the  hand  or  of  a  cane  or  a  hook  inside  the  dividing 


§  557  CRIMES   AGAINST   PROPERTY  621 

line,  in  order  to  draw  out  the  goods  which  the  intruder  intends 
to  steal,  or  of  a  pistol  in  order  to  shoot  or  to  extort  money  from 
the  inmates,  is  a  complete  entry.  But  if  the  tools,  which  are 
used  only  for  the  breaking  and  not  for  the  ulterior  felony,  only 
penetrate  the  walls,  or  accidentally  drop  inside,  this  is  a  mere 
incident  of  the  breaking,  and  does  not  constitute  an  entry. 
Where,  however,  the  same  act  which  accomplishes  the  breaking 
also  through  its  natural  consequences  perpetrates  the  felony,  — 
as  where  the  floor  of  a  bank  vault  is  perforated  by  a  drill  and 
through  the  orifice  the  coin  contained  therein  falls  by  its  own 
weight  into  the  hands  of  the  thief,  the  intrusion  of  the  instru- 
ment of  breaking  is  likewise  an  entry. 

R^m.  In  burglary  the  breaking  and  the  entering  must  be  re- 
lated to  each  other  by  a  community  of  intcvt,  since  to  break  at  one 
time  for  one  purpose  and  to  enter  at  another  time  for  another 
purpose  does  not  make  the  breaking  and  entering  constituent 
elements  of  the  same  crime.  The  breaking  and  entering  must  also 
be  against  the  vnll  of  the  owner  of  the  dwelling,  —  for  if  he 
consents  to  it  or  connives  at  it,  even  though  his  purpose  be  to 
entrap  a  criminal,  there  can  be  no  such  forcible  or  fraudulent  in- 
trusion as  is  necessary  to  a  burglary. 

Read:  4  Bl.  Com.,  pp.  223,  226,  227; 
Hawley,  Criminal  Law,  pp.  177-182; 
Desty,  Criminal  Law,  §§  141-141  b; 
May,  Law  of  Crimes,  §§  256-263; 
Clark  and  Marshall,  Criminal  Law,  §§  400,  404,  405; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §§  91-93; 
Kenney,  Criminal  Law,  pp.  167-170; 
2  Russell  on  Crimes,  pp.  1-14; 

Archbold,  Criminal  Procedure,  pp.  1069-1071,  1077-1086; 
2  Bishop,  Criminal  Law,  §§90-100; 
Bishop,  Statutory  Crimes,  §  312; 
Wharton,  Criminal  Law,  §§  758-780; 
McClain,  Criminal  Law,  §§  500-503. 


§  557.     Of  Burglary:  the  Dwelling  House. 

The  dwcUiiicj  lunisr  in  burglary,  as  in  arson,  signifies  a  build- 
ing which  has  actually  been  used  for  human  habitation,  and 
whose  use  for  that  j)urpose  has  not  been  j)erniaiUMitly  aban- 
doned. It  embraces  all  hou.ses  and  outhouses  witiiin  or  without 
the  curtilage,   which  are  parcel  of,   and  in   their  use  are  sub- 


622  ELEMENTARY  LAW  §  557 

servient  to,  the  building  occupied  as  an  abode.  When  under 
the  same  roof  there  are  some  apartments  used  for  residence 
and  others  for  a  different  purpose,  such  as  stores  or  workshops, 
only  the  portions  of  the  building  which  are  used  for  residence 
are  within  the  dwelling  house.  Where  several  families  reside 
under  one  roof  but  in  different  portions  of  the  building,  the 
portion  of  each  family  being  distinct  and  separated  from  the 
others  and  having  a  different  outward  entrance,  each  portion 
of  the  building  is,  of  itself,  a  dwelling  house.  Suites  of  rooms 
in  a  college  or  an  inn  of  court,  as  well  as  lodgings  in  a  private 
habitation,  have  also  been  held  to  be  dwelling  houses  if  the 
landlord  does  not  live  under  the  same  roof,  or  if  he  and  his 
tenants  enter  by  separate  doors.  But  where  there  is  only  one 
external  entrance,  and  the  landlord  himself  resides  in  any  portion 
of  the  building,  the  entire  building  is  but  one  dwelling  house  of 
which  he  is  the  head,  while  the  other  occupants  are  in  some 
sense  members  of  his  family.  The  ownership)  of  the  house  in 
burglary  is  in  the  person  having  the  legal  right  of  possession, 
whether  the  house  is  an  independent  building  or  one  of  several 
distinct  family  apartments  under  the  same  roof.  Burglary 
may  thus  be  committed  by  the  occupant  of  one  apartment 
against  another,  or  by  a  landlord  against  any  of  his  tenants. 

Rem .  Where  several  families  occupy  distinct  apartments 
under  one  roof,  each  with  an  entrance  from  a  common  court  or 
corridor,  the  division  walls  which  separate  the  apartments  are 
outside  walls  in  reference  to  the  crime  of  burglary,  and  can  be 
broken  and  entered  in  the  same  sense,  and  with  the  same  legal 
consequences,  as  if  the  apartment  was  a  different  building.  The 
dwelling  house  of  a  wife,  who  lives  apart  from  her  husband,  is  in 
the  ownership  of  the  husband. 

Read:  4  Bl.  Com.,  pp.  224-226; 

Hawley,  Criminal  Law,  pp.  182-185; 

Desty,  Criminal  Law,  §§  141  g-141  j; 

May,  Law  of  Crimes,  §§  264,  265; 

Clark  and  Marshall,  Criminal  Law,  §§  401-403; 

Kenney,  Criminal  Law,  pp.  165-167; 

2  Russell  on  Crimes,  pp.  14-37 ; 

Archbold,  Criminal  Procedure,  pp.  1086-1101; 

2  Bishop,  Criminal  Law,  §§  104-108; 

Bishop,  Statutory  Crimes,  §§  277-290; 

Wharton,  Criminal  Law,  §§  781-791,  798-805; 

McClain,  Criminal  Law,  §§  493-499. 


§§  558,  559       CRIMES    AGAINST    PROPERTY  623 

§  558.     Of  Burglary:  the  Night  Season. 

The  night  season,  as  that  term  is  used  in  defining  burglary, 
signifies  that  portion  of  the  night  which  intervenes  between  the 
total  disappearance  of  daylight  in  the  evening  and  its  reap- 
pearance in  the  morning.  Daylight  exists  as  long  and  as  soon 
as  by  the  natural  light  of  the  day  the  features  of  a  person  can 
be  reasonably  discerned,  so  that  it  can  be  determined  whether 
he  be  friend  or  foe.  Both  the  breaking  and  the  entering  must 
occur  in  the  night  season,  but  not  necessarily  in  the  same  night. 
If  both  are  committed  in  the  night  season  and  in  pursuance  of 
the  same  felonious  design,  though  separated  by  an  interval  of 
several  days,  it  is  sufficient. 

Rem.  Moonlight,  however  brilliant,  is  not  as  to  this  crime  the 
equivalent  of  daylight ;  nor  is  any  artificial  Hght  radiating  from 
streets  or  surrounding  houses;  and  the  presence  or  absence  of 
these  is  immaterial. 

Read:  4  Bl.  Com.,  p.  224; 

Hawley,  Criminal  Law,  pp.  185,  186; 

Desty,  Criminal  Law,  §  141  /; 

May,  Law  of  Crime.s,  §  266; 

Clark  and  Marshall,  Criminal  Law,  §  406; 

Kenney,  Criminal  Law,  pp.  170,  171; 

2  Russell  on  Crimes,  pp.  37,  38; 

Archbold,  Criminal  Procedure,  pp.  1101-1103; 

2  Bishop,  Criminal  Law,  §§  101-103; 

Bishop,  Statutory  Crimes,  §  276; 

Wharton,  Criminal  Law,  §§  806-809; 

McClain,  Criminal  Law,  §  504. 


§  559.     Of  Burglary:  the  Felonious  Intent. 

The  felonious  intent,  with  which  the  breaking  and  entering 
must  be  committed,  is  an  intent  to  perpetrate  some  felony 
within  the  dwelhng  house.  This  intent  is  a  specific  intent  and 
is,  therefore,  a  necessary  ingredient  of  the  criminal  act.  It  is 
a  matter  of  fact  which  must  be  affirmatively  proved  by  the 
State,  and  cannot  be  presumed  by  law  from  the  breaking  and 
entering,  though  the  jury  may  infer  it  from  the  circumstances 
attending  the  intrusion.  To  break  and  enter  without  such  in- 
tent, as  with  the  intent  to  commit  a  misdemeanor,  or  to  occupy 
a  place  for  shelter,  or  to  inflict    damage  other  than  burning 


624  ELEMENTARY   LAW  §  560 

upon  the  house  itself  is  not  burglary;   nor  unless  made  a  crime 
by  statute  does  it  exceed  a  trespass. 

Rem.  The  felonious  intent  may  be  to  commit  a  murder,  man- 
slaughter, rape,  robbery,  larceny,  or  any  other  crime  which,  if 
completed,  would  render  the  intruder  guilty  of  a  separate  felony. 
To  carry  out  the  felonious  intent  by  perpetrating  the  intended 
felony  would  make  the  intruder  liable  for  two  offences  —  the 
burglary  and  the  intended  felony  —  for  both  of  which  he  might 
be  prosecuted. 

Read:  4  Bl.  Com.,  pp.  227,  228; 

Hawley,  Criminal  Law,  pp.  186,  187; 

May,  Law  of  Crimes,  §  267 ; 

Clark  and  Marshall,  Criminal  Law,  §§  407,  408; 

Kenney,  Criminal  Law,  pp.  171,  172; 

2  Russell  on  Crimes,  pp.  .38-43; 

Archbold,  Criminal  Procedure,  pp.  1103-1108; 

2  Bishop,  Criminal  Law,  §§  109-117; 

Wharton,  Criminal  Law,  §§  810-822; 

McClain,  Criminal  Law,  §§  505-507. 


§  560.     Of  Burglary:  Statutory  Burglary. 

With  the  development  of  society  and  the  extension  of  com- 
merce it  has  been  found  necessary  to  afford  to  structures  other 
than  mere  dwelling  houses  the  same  protection  against  forcible 
intrusion.  Hence  by  the  local  laws  of  many  States  the  crime  of 
Statutory  Burglary  has  been  defined  and  even  made  a  felony. 
Whether  made  felonies  or  not  by  statute  such  crimes  are  gen- 
erally punished  with  less  severity  than  the  common  law  felony 
whose  name  they  bear. 

Rem.  Among  the  offences  prohibited  by  these  local  statutes 
are  the  breaking  and  entering  in  the  night  season  of  any  house 
where  personal  property  is  stored ;  or  of  any  vehicle  of  traffic  con- 
taining goods  and  merchandise ;  or  of  any  church  or  other  public 
building.  Other  statutes  place  in  the  same  category  of  crimes  the 
forcible  entering  of  any  dwelling  house  in  the  daytime. 

Read  :  Clark  and  Marshall,  Criminal  Law,  §  409 ; 
Kenney,  Criminal  Law,  p.  173; 
2  Bishop,  Criminal  Law,  §§  118-120; 
Bishop,  Statutory  Crimes,  §§  291-297; 
Wharton,  Criminal  Law,  §§  792-797  a. 


§  561  CRIMES   AGAINST   PROPERTY  625 

§  561.     Of  Larceny:  the  Taking  and  Carrying  Away. 

Larceny  or  theft  is  the  wrongful  forcible  or  fraudulent  sever- 
ance of  the  personal  property  of  another  from  the  possession 
of  its  owner,  against  his  will  and  with  intent  to  steal  the  same. 
The  severance  of  the  property  includes  both  a  taking  and  a 
carrying  away.  The  taking  is  the  wrongful  assumption  of 
physical  control  over  the  property,  —  its  prehension  as  dis- 
tinguished from  its  amotion  from  one  place  to  another.  The 
carrying  away  is  its  wrongful  removal  from  the  place  where  it 
was  before  the  prehension  to  some  other  place.  To  take  without 
carrying  away  is  not  severance;  but  to  remove  it  even  for  an 
instant  or  to  the  shortest  possible  distance,  if  the  physical  con- 
nection between  the  object  and  the  place  be  once  entirely  broken, 
completes  the  severance  though  the  property  be  immediately 
returned  to  its  original  location.  Thus  to  snatch  an  article  out 
of  its  place  of  deposit  and  immediately  drop  it  back  again  was 
hold  to  be  a  severance ;  but  to  seize  an  article  connected  by  a 
long  string  with  its  place  of  deposit,  and  run  away  with  it  so 
far  as  the  length  of  the  string  would  allow  and  then  droj:)  it, 
the  string  remaining  unbroken,  was  held  not  to  be  a  carrying 
away.  The  severance  may  be  forcible  or  fraudulent.  To  violently 
remove  an  inanimate  object;  to  entice  away  an  animal  by  words 
or  show  of  food ;  to  accept  an  article  delivered  up  through  fear 
or  mistake ;  to  apply  property  received  from  another  to  a  purpose 
different  from  that  for  which  it  was  received;  to  pick  up  goods 
that  have  been  lost  or  to  retain  those  which  have  come  into 
one's  hands  by  accident,  —  arc  all  instances  of  the  various 
methods  by  which  unlawful  severance  may  be  accomplished. 
The  severance  must  be  from  the  po,<ises.<iio7i  of  the  owner.  Po.s.fcs- 
sion  here  signifies  the  actual  or  constructive  physical  control 
over  the  property  with  the  right,  for  the  time  being,  to  retain 
that  control.  It  is  distinguished  from  custody,  which  is  the 
actual  physical  control  over  the  property  without  the  right  to 
retain  control  as  against  the  owner  or  j>ossessor.  Thus,  as  the 
physical  control  over  an  article  by  a  servant  or  agent  is  mere 
custody  and  not  possession,  the  taking  and  carrying  away  of  the 
article  from  the  servant  is  not  theft  unless  it  is  so  removed  .as  to 
be  put  beyond  the  possession  of  its  owner.  The  severance 
must  also  be  against  the  owner's  will.     If  he  consents   thereto, 

40 


626  ELEMENTARY   LAW  §  561 

even  though  his  consent  be  obtained  by  fraud,  there  is  no  lar- 
ceny. But  such  consent  must  relate  to  a  transfer  of  possession 
as  distinguished  from  a  transfer  of  custody,  for  one  who  secures 
the  custody  of  an  article  by  craft  or  persuasion,  and  then  detains 
it  against  the  owner's  will,  deprives  the  owner  of  its  possession  as 
truly  as  if  no  transfer  of  its  custody  had  been  previously  made. 
The  severance  of  property  from  the  owner's  possession  in 
larceny  is  not  in  law,  however,  an  instantaneous  but  a  con- 
tinuing act,  perpetually  repeated  by  each  exercise  of  control 
over  the  property  until  it  is  surrendered  or  reclaimed;  and, 
therefore,  to  whatever  place  the  taker  may  remove  it  in  that 
place  the  act  of  severance  occurs.  Still  the  crime  itself  is 
but  a  single  crime,  and  having  been  punished  in  one  local- 
ity, to  which  the  property  is  carried,  it  cannot  be  prosecuted  in 
another. 

Rem.  The  distinction  between  custody  and  possession  is  par- 
ticularly important  in  reference  to  larceny,  especially  as  to  the 
persons  by  whom  theft  may  be  committed,  and  the  person  from 
whose  possession  the  property  must  be  charged  to  have  been 
taken.  Thus  a  stranger  does  not  steal  the  property  from  a  servant 
or  agent  but  only  from  the  owner  or  possessor,  and  a  servant  or 
agent  can  steal  it  from  the  owner  by  misappropriating  it  while  it 
is  in  his  own  custody.  A  bailee,  on  the  other  hand,  having  the 
possession  and  not  the  mere  custody,  cannot  become  guilty  of 
stealing  the  property  unless  he  first  reduces  his  possession  into 
custody  by  returning  the  property  to  the  owner,  or  by  so  abusing 
his  trust  as  to  lose  his  right  to  its  possession.  Severance  of  prop- 
erty from  the  possession  of  the  owner  becomes  complete  when- 
ever the  property  passes  into  the  physical  control  of  one  who 
claims  possession  in  himself,  whether  this  claim  be  made  by  acts 
or  words.  Thus  a  servant,  having  already  the  custody  of  the 
property,  severs  it  from  the  possession  of  the  owner  by  refusing  to 
return  it,  or  by  misappropriating  it  to  his  own  use,  or  by  applying 
it  to  purposes  contrary  to  those  for  which  it  was  entrusted  to 
him  by  the  owner. 

Read:  4  Bl.  Com.,  pp.  229-231; 

Hawley,  Criminal  Law,  pp.  191,  192,  198; 

Desty,  Criminal  Law,  §§  145-145  2; 

May,  Law  of  Crimes,  §§  269,  277-287; 

Clark  and  Marshall,  Criminal  Law,  §§  314-325; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §§  94-98; 

Kenney,  Criminal  Law,  pp.  175-186; 

2  Russell  on  Crimes,  pp.  121-209: 


562  CRIMES  AGAINST  PROPERTY  627 

Arcbbold,   Criminal   Procedure,   pp.    1174-1176,    1181-1185,   1194- 

1217; 
2  Bishop,  Criminal  Law,  §§  794-839,  853-890; 
Wharton,  Criminal  Law,  §§  914-931,  956-976; 
McClain,  Criminal  Law,  §§  548-563. 


§  562.     Of  Larceny:  the  Property. 

The  property  taken  must,  at  the  time  it  is  taken,  be  'personal 
property.  Real  property,  and  things  permanently  annexed 
thereto,  are  not  subjects  of  theft.  If  portions  of  the  realty  are 
separated  from  the  land  and  so  are  changed  into  personal  prop- 
erty, and  while  in  this  condition  pass  into  the  possession  of  their 
owner  though  but  for  a  moment,  a  subsequent  severance  of 
them  with  intent  to  steal  will  be  a  theft.  But  if  the  severance 
from  the  land  and  the  removal  are  simultaneous,  these  acts  do 
not  deprive  the  owner  of  liis  personal  property,  because  as  per- 
sonal property  the  objects  taken  never  were  in  his  possession. 
Thus  where  a  wrongdoer  plucks  apples  from  a  tree,  and  puts 
them  in  his  pocket  or  in  a  bag  held  in  his  hand  and  not  resting  on 
the  ground ;  or  where  he  lifts  a  shutter  from  its  fastenings  and 
lays  it  on  his  shoulder  to  carry  it  away,  —  these  acts  are  trespass 
and  not  theft.  But  if  he  shakes  the  apples  from  the  tree  and 
they  fall  upon  the  land,  or  leans  the  shutter  against  the  building 
for  an  instant,  the  severed  articles  become  personal  property  in 
the  possession  of  their  owner,  and  then  to  take  and  carry  them 
away  may  be  a  larceny.  Any  objects  recognized  by  the  law  as 
personal  property,  whether  animate  or  inanimate,  are  capable 
of  being  stolen ;  but  objects  not  so  recognized,  whatever  be 
their  value  or  importance  to  their  owner,  are  not  subjects  of 
theft.  No  property  is  Uie  subject  of  larceny  unless  it  has 
some  appreciable  pecuniary  value,  however  small ;  for  the  law 
does  not  undertake  to  protect,  by  so  severe  a  penalty  as  theft 
receives,  articles  that  are  absolutely  worthless. 

Rem.  C hoses  in  acHnn,  commonly  so  called,  being  mere  incor- 
poreal rights,  are  incapable  of  severance  from  the  possession  of 
their  owner  by  any  form  of  taking  and  carrying  away.  But  the 
written  evidence  of  the  existence  of  such  rights  —  such  as  bills, 
notes,  bonds,  deeds,  and  similar  instruments  —  are  tangible  prop- 
erty, and  under  the  name  of  choses  in  action  are  generally  by 
statute,  if  not  by  the  unwritten  law,  j)laced  on  the  same  plane 


628  ELEMENTARY   LAW  §  563 

with  other  chattels  and  made  subject  to  theft.  Although  such  in- 
struments may  have  no  intrinsic  value,  and  the  rights  evidenced 
by  them  may  be  susceptible  of  other  proof,  it  has  been  held  that 
upon  a  prosecution  for  stealing  them  they  should  be  estimated  as 
of  their  face  value. 

Read:  4  Bl.  Com.,  pp.  232-236; 

Hawley,  Criminal  Law,  pp.  198-200; 

Desty,  Criminal  Law,  §§  145  k-l45  o; 

May,  Law  of  Crimes,  §§  271-276; 

Clark  and  Marshall,  Criminal  Law,  §§  303-312; 

Kenney,  Criminal  Law,  pp.  191-195; 

2  Russell  on  Crimes,  pp.  222-252 ; 

Archbold,  Criminal  Procedure,  pp.  1176-1181; 

2  Bishop,  Criminal  Law,  §§  757-787; 

Wharton,  Criminal  Law,  §§  862-882  b,  951-955; 

McClain,  Criminal  Law,  §§  534-543. 


§  563.     Of  Larceny:  the  Ownership  of  the  Property. 

Ownership  in  larceny,  as  in  many  other  crimes,  signifies 
the  legal  right  to  immediate  possession.  This  right  resides 
in  the  ultimate  owner  of  the  property  as  against  all  persons 
except  those  upon  whom  some  temporary  right  to  possession 
has  been  legally  conferred.  In  such  persons,  during  that  tem- 
porary period,  this  possessory  right  exists  as  against  all  the 
world.  Thus  where  the  ultimate  owner  has  delivered  the 
property  to  a  bailee,  the  wrongful  severance  of  the  property  by 
a  stranger  from  the  possession  of  the  bailee  is  a  severance  also 
from  that  of  the  owner;  while  if  the  owner  commits  the  act 
of  severance  as  against  the  bailee  he  may  be  guilty  of  theft.  Joint 
tenants  and  tenants  in  common  have  no  ownership  as  against 
each  other ;  nor  has  a  husband  any  ownership  as  against  his 
wife;  and  hence  neither  of  these  parties  can  steal  the  common 
property  from  one  another.  The  ownership  of  property  which 
is  attached,  or  held  under  an  execution  before  sale,  is  still  in  the 
general  owner ;  and  property  in  the  hands  of  an  agent  belongs, 
as  against  third  parties,  to  his  principal.  Clothing  furnished 
by  a  parent  to  his  children,  while  being  worn  by  them,  is  the 
property  both  of  the  children  and  the  parent. 

Rem.  The  right  to  immediate  possession  is  not  defeated  by 
the  unlawful  removal  of  the  property  by  a  trespasser  or  a  thief. 
To  steal  from  the  thief  or  trespasser  is  to  steal  from  the  rightful 


§  564  CRIMES    AGAINST    PROPERTY  629 

possessor;  and  since  naked  possession,  although  wrongful  in  its 
origin,  gives  a  right  to  possession  against  all  persons  except  those 
in  whom  the  legal  right  to  possession  resides,  the  theft  is  also  one 
against  the  thief  or  trespasser. 

Read:  4  Bl.  Com.,  p.  236; 

Hawley,  Criminal  Law,  pp.  200,  201 ; 

Clark  and  Marshall,  Criminal  Law,  §  313; 

Kenney,  Criminal  Law,  pp.  186-191; 

2  Russell  on  Crimes,  pp.  252-273 ; 

Archbold,  Criminal  Procedure,  pp.  1187-1194,  1218-1241; 

2  Bishop,  Criminal  Law,  §§  788-793; 

Wharton,  Criminal  Law,  §§  932-950; 

McClain,  Criminal  Law,  §§  544-547. 


§  664.     Of  Larceny:  the  Intent  to  Steal. 

In  order  to  constitute  a  larceny  the  taking  and  carrying 
away  must  be  accompanied  by  an  intent  to  steal.  The  intent 
to  steal  always  comprises  an  intent  to  permanently  and  wrong- 
fully deprive  the  owiu'r  of  the  possession  of  the  property.  Thus 
a  taking  with  an  intention  to  return  the  property  after  using  it, 
or  a  taking  under  a  claim  of  right,  or  under  a  bona  fide  mistake  as 
to  the  ownership  of  the  j)roperty,  are  not  theft  but  mere  trespass 
or  conversion.  Whether  any  other  intent  than  this  is  inclu(ic<l 
in  the  intent  to  steal  is  disputed.  The  intent  to  steal  must 
cninride  in  'point  of  time  with  the  act  of  taking,  for  an  intent 
sul)se(iuently  formed  does  not  characterize  the  act  nor  raise 
it  from  a  trespass  to  a  crime.  Thus  one  who  having  found  lost 
goods,  and  not  knowing  the  owner  or  having  any  apparent 
means  of  ascertaining  his  identity,  afterwards  determines  to 
appropriate  them  to  his  own  use,  is  not  guilty  of  theft ;  though 
if  he  knew  the  owner,  or  might  with  reasonable  effort  have  dis- 
covered him,  the  presumption  that  at  the  time  of  taking  he  in- 
tended to  appropriate  them  becomes  very  strong,  and  unless 
rebutted  may  warrant  his  conviction  for  larceny.  Where  the 
law  regards  a  finder  as  having  only  a  mere  custofly  of  the  pro{>- 
erty  found,  a  subsequent  approj)riation  to  himself  is  a  new 
taking  with  intent  to  steal.  "^I'he  intent  to  steal  is  a  sperifi'^ 
intent,  a  matter  of  fact  and  not  of  law,  and  must  be  proved 
by  ihe  prosecutor  bcyonfl  reasonable  doubt.  A  secret  taking 
furnishes  an  inference  of  such  intent,  as  an  open  and  notorious 
taking  does  of  an  honest  though  mistaken  purpose.     The  cou' 


630  ELEMENTARY   LAW  §  565 

scious  exclusive  'possession  of  stolen  property  immediately 
after  the  theft  raises  the  presumption  that  the  possessor  is  the 
thief,  and  throws  upon  him  the  burden  of  explaining  his  posses- 
sion, or  of  proving  that  he  took  it  without  intent  to  steal. 

Rem.  It  is  held  by  some  authorities  that  the  intent  to  steal 
must  include  an  expectation  and  purpose  of  profit  to  the  taker. 
Where  this  doctrine  of  lucri  causa  prevails  it  is  not  larceny  to 
take  the  property  in  order  to  injure  the  owner  by  destroying  it, 
while  if  the  taker  entertained  any  hope  of  benefiting  himself  by 
the  taking,  even  in  the  most  trivial  degree,  the  conversion  would 
be  theft.  Thus  one  who  took  and  destroyed  a  letter  belonging  to 
another  in  order  to  prevent  injury  to  his  own  reputation ;  one 
who  killed  another's  cattle  in  order  thereby  to  suppress  evidence 
against  himself;  one  who  appropriated  an  article  in  order  to  pre- 
sent it  to  his  mistress ;  one  who,  contrary  to  his  instructions,  fed 
his  master's  horses  with  a  certain  food  belonging  to  his  master  in 
order  to  save  himself  the  labor  of  preparing  other  foods;  all 
these  were  alike  held  guilty  of  taking  lucri  causa,  and  therefore 
of  intent  to  steal.  The  difficulty  of  proving  this  ingredient  of  the 
intent  to  steal,  especially  in  cases  where  the  thief  is  arrested  before 
he  has  appropriated  the  property  to  his  own  use,  has  led  many 
courts  to  reject  the  doctrine  of  lucri  causa  altogether,  and  to  hold 
that  a  design  unlawfully  and  permanently  to  dispossess  the 
owner  is  a  complete  intent  to  steal. 

Read:  4  Bl.  Com.,  p.  232; 

Hawley,  Criminal  Law,  pp.  188-191,  193-197; 

Desty,  Criminal  Law,  §§  145/,  145  w; 

May,  Law  of  Crimes,  §§  288-291 ; 

Clark  and  Marshall,  Criminal  Law,  §§  326-333; 

Kenney,  Criminal  Law,  pp.  195-208; 

2  Russell  on  Crimes,  pp.  209-222 ; 

Archbold,  Criminal  Procedure,  pp.  1185-1187; 

2  Bishop,  Criminal  Law,  §§  840-852; 

Wharton,  Criminal  Law,  §§  883-913; 

McClain,  Criminal  Law,  §§  564-571. 


§  566.     Of  Robbery:  the  Larceny. 

Robbery  is  the  most  heinous  form  of  larceny.  It  consists  in 
the  theft  of  property  from  the  person  or  in  the  presence  of  the 
owner,  accomplished  by  violence  or  putting  him  in  fear.  The 
elements  of  the  act  of  theft  are  identical  in  all  respects  with  those 
of  ordinary  larceny.  There  must  be  the  same  wrongful  taking 
and  carrying  away  of  personal  property  from  the  possession  of 


§  565  CRIMES    AGAINST    PROPERTY  631 

the  owner,  against  his  will  and  with  the  intent  to  steal.  In 
robbery,  however,  the  property  must  be  taken  from  the  person 
or  in  the  'presence  of  the  owner.  How  far  the  limits  of  the  person 
and  presence  extend  it  is  not  always  easy  to  determine.  They 
cover  all  personal  property  which  is  actually  or  physically 
connected  with  the  body  of  the  owner,  and  also  all  which  is 
in  his  sight  and  is  under  his  immediate  and  personal  care  and 
protection.  Thus  where  a  master's  goods  were  stolen  by  violence 
from  his  servant  in  the  master's  presence;  where  a  traveler 
was  assaulted  by  a  thief  who  then  took  away  his  horse  which  was 
standing  by  him;  where  the  owner  was  forcibly  confined  in 
one  room  of  his  house  while  thieves  pillaged  the  others ;  where 
a  person,  moved  by  fear,  threw  his  purse  by  the  wayside,  and 
his  assailants  immediately  and  in  his  sight  picked  it  up,  —  these 
thefts  were  held  to  be  committed  in  the  presence  of  the  owner. 
On  the  other  hand,  property  not  actually  in  his  sight  nor  under 
his  control,  however  near  to  him  it  may  be,  is  not  in  his  presence. 
Thus  where  thieves  struck  money  from  the  owner's  hand  and 
it  fell  upon  the  ground,  whence  they  immediately  picked  it  up, 
it  not  being  proved  that  he  saw  them  do  so  or  that  the  money 
remained  under  his  control,  it  was  adjudged  to  be  no  robbery. 

Rem.  Larceny  may  be  aggravated  by  various  attendant  cir- 
cumstances. Thus  where  the  property  stolen  is  below  a  certain 
value  fixed  by  law,  it  is  called  "petit  larceny" ;  where  it  exceeds 
that  value,  the  offence  is  "grand  larceni/."  Larceny  under  or- 
dinary conditions  is  known  as  ".simple  larceny";  where  the 
theft  takes  place  in  a  house  or  from  the  person  it  is  "compound 
larceny."  These  distinctions  relate  principally  to  the  kind  and 
measure  of  the  punishment  to  be  inflicted  for  the  crime.  Rob- 
bery is  one  form  of  compound  larceny. 

Read:  4  Bl.  Com.,  pp.  239-242; 

Hawley,  Criminal  Law.  pp.  233-235; 

Desty,  Criminal  Law,  §§  142-142  a,  142  fir,  142  j,  145p-145io; 

May,  Law  of  Crimes,  §§  245,  248,  270,  293-297; 

Clark  and  Marshall,  Criminal  Law,  §§  334-340,  370-373; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §§  105-107; 

Kenney,  Criminal  Law,  pp.  209-216; 

2  Russell  on  Crimes,  pp.  80-87; 

Archbold,  Criminal  Procedure,  pp.  1287-1289; 

2  Bi.shop,  Criminal  Law,  §§  892-904,  115&-1165; 

Wharton,  Criminal  Law,  §§  84(5-849; 

McClaiu,  Criminal  Law,  §§  468,  471-479,  574-620. 


632  ELEMENTARY  LAW  §  5GC 

§  566.     Of  Robbery:  the  Violence  or  Putting  in  Fear. 

A  larceny  is  not  robbery  unless  the  severance  of  the  property 
from  the  possession  of  the  owner  is  effected  by  violence  or  by 
putting  him  in  fear.  Where  the  larceny  is  accomplished  by 
violence,  the  violence  must  be  some  exercise  of  physical  force, 
distinct  from  or  in  excess  of  that  which  is  involved  in  the  act 
of  taking.  It  musi  amount  to  an  assault  upon  the  person  of  the 
owner,  and  not  be  merely  an  attack  upon  his  property.  Thus 
where  an  article  is  snatched  from  the  owner's  hand,  or  is  stealth- 
ily extracted  from  his  pocket,  it  is  a  stealing  from,  the  person,  not 
a  robbery.  But  where  the  article  is  attached  to  a  chain  around 
his  neck  so  that  the  snatching  it  applies  force  to  his  person,  or 
if  there  be  a  struggle  for  its  possession  before  the  taking,  there 
is  sufficient  violence  to  make  the  theft  a  robbery.  To  jnit  in  fear 
is  to  excite,  by  threats  or  actions  which  manifest  an  intent  to 
commit  violence,  a  reasonable  apprehension  in  the  mind  of  the 
owner  that  physical  injury  will  be  inflicted  on  him  or  on  some 
person  under  his  protection,  or  that  he  will  be  prosecuted  for 
the  crime  of  sodomy,  unless  he  surrenders  his  property  to  the 
thief.  In  this  form  of  robbery  the  property  must  be  delivered 
up  by  the  owner  while  he  is  under  the  influence  of  such  appre- 
hension, though  it  need  not  be  at  the  same  time  the  threats 
were  made  against  him.  Thus  where  a  thief  compelled  his 
victim  to  swear  that  he  would  bring  a  sum  of  money  to  him  at 
a  certain  place,  and  threatened  him  with  death  if  he  failed 
to  do  so,  the  surrender  of  the  money  at  that  place  at  a  subse- 
quent date,  yet  under  the  fear  of  death,  was  held  to  be  a  robbery. 
So  where,  under  fear  of  a  threatened  prosecution  for  the  crime 
of  sodomy,  a  man  promised  to  pay  money  and  afterwards,  under 
the  influence  of  the  same  fear  the  money  was  actually  paid,  the 
taking  of  the  money  was  adjudged  a  robbery. 

Rem.  In  this  crime  the  violence  or  the  putting  in  fear  must, 
in  all  cases,  either  precede  or  accompany  the  act  of  taking.  A 
personal  injury  inflicted  after  the  taking  is  completed  does  not 
change  the  character  of  the  theft,  though  it  may  constitute  a  sepa- 
rate crime. 

Read:  4  BI.  Com.,  pp.  242,  24.3; 

Hawley,  Criminal  Law,  pp.  235-237; 
Desty,  Criminal  Law,  §§  142  6-142  e; 


§  567  CRIMES    AGAINST    PROPERTY  633 

May,  Law  of  Crimes,  §§  246,  247; 

Clark  and  Marshall,  Criminal  Law,  §§  374-379; 

2  Russell  on  Crimes,  pp.  87-112; 

Archbold,  Criminal  Procedure,  pp.  1289-1306; 

2  Bishop,  Criminal  Law,  §§  1166-1181,  1200,  1201; 

Wharton,  Criminal  Law,  §§  850-858; 

McClain,  Criminal  Law,  §§  469,  728-738. 


§  567.     Of  Embezzlement. 

Larceny  is  committed  only  when  the  property  is  taken  from 
the  possession  of  the  owner  by  a  person  who,  at  the  time,  has 
no  possession.  The  wrongful  appropriation  of  property  by  one 
who  already  has  possession  is  sometimes  made  a  crime  by 
statute  under  the  name  of  embezzlement.  In  order  to  comprehend 
the  nature  of  this  crime  the  distinctions  between  custody,  posses- 
sion, and  ownership  must  be  kept  in  mind.  The  custody  of  an 
object  may  reside  in  one  person,  the  right  of  immediate  posses- 
sion in  another  person,  the  right  of  future  possession  in  a  third, 
and  the  ultimate  ownership  in  a  fourth.  Larceny  is  always  a 
violation  of  the  right  of  immediate  possession,  and  may  be  com- 
mitted, as  has  been  already  explained,  either  by  a  stranger  or 
by  a  person  to  whom  the  custody  of  the  property  has  been  de- 
livered. The  violation  of  the  right  of  future  possession  by  a 
person  in  whom  resides  the  right  of  immediate  possession,  and 
the  violation  of  the  ultimate  right  of  ownership  by  any  person, 
are  not  larceny ;  though  where  the  right  of  immediate  possession 
terminates,  and  the  possessor  still  retains  control  of  the  property, 
his  control  becomes  mere  custody,  and  his  subsetjuent  violation 
of  the  former  right  of  future  possession,  which  has  now  changed 
into  a  right  of  immediate  ])ossession,  will  be  a  theft.  Embezzle- 
ment embraces  only  violations  of  the  right  of  future  possession 
by  a  person  who  still  has  the  right  of  immediate  possession. 
But  it  docs  not  include  all  such  violations.  The  ordinary  wrongs 
committed  by  bailees  against  bailors,  and  by  debtors  against 
creditors,  are  left  by  the  law  to  such  redress  as  civil  remedies 
supply.  The  rules  defining  and  punisjiing  embezzlement  cover 
those  cases  where  some  special  fulurlarij  relation  exists  between 
the  immediate  arid  the  future  possessors  which  is  necessitated 
by  the  ordinary  course  of  business,  and  where  the  wrongful 
act  of  the  immediate  possessor,  subverting  the   right  of    the 


634  ELEMENTARY  LAW  §  568 

future  possessor,  involves  a  breach  of  personal  confidence  and 
trust.  Thus  when  a  master  entrusts  a  servant  with  the  collection 
of  his  bills  from  third  parties,  the  money  paid  by  the  third 
parties  to  the  servant  vests  in  the  immediate  possession  of  the 
servant,  —  not  in  liis  custody,  because  custody  presupposes 
a  possession  by  the  master  before  delivery  to  the  servant;  and 
therefore,  if  the  servant  converts  the  money  to  liis  own  use,  while 
it  is  still  in  his  possession,  his  conversion  is  not  larceny  but  em- 
bezzlement. On  the  contrary,  if  the  servant  delivers  the  money 
into  the  actual  or  constructive  possession  of  the  master,  as  by 
placing  it  in  the  master's  till  or  safe,  his  own  possession  ceases, 
and  if  he  afterwards  takes  it  out  and  converts  it  the  conversion 
is  a  theft. 

Rem.  The  statutes  defining  embezzlement  generally  specify 
the  fiduciary  relations  of  which  this  crime  must  be  the  violation  ; 
including  among  them  the  officers  of  public  and  private  corpora- 
tions, and  the  clerks,  agents,  and  servants  of  an}'  natural  or 
artificial  person.  These  statutes  also  describe  the  criminal  act 
in  terms  sufficient  to  embrace  all  fraudulent  conversions,  by  such 
subordinates,  of  any  personal  property  received  by  them  on  be- 
half of  their  employers.  Minor  details  of  the  crime  differ  under 
the  different  local  laws. 

Read:  Hawley,  Criminal  Law,  pp.  202-212; 
Desty,  Criminal  Law,  §§  146-146  i; 
May,  Law  of  Crimes,  §§  298-304; 
Clark  and  Marshall,  Criminal  Law,  §§  341-349; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §§  99,  100; 
Kenney,  Criminal  Law,  pp.  217-226; 
Archbold,  Criminal  Procedure,  pp.  1336-1357; 
2  Bishop,  Criminal  Law,  §§  318-383; 
Wharton,  Criminal  Law,  §§  1009-1064; 
McClain,  Criminal  Law,  §§  621-656. 

§  568.     Of  False  Pretences. 

The  law  of  larceiiy  provides  for  the  punishment  of  the  wrong- 
ful severance  of  personal  property  from  the  possession  of  the 
owner  against  his  will ;  whether  it  be  by  strangers,  or  by  persons 
in  whose  custody  the  property  has  been  placed  by  the  owner, 
or  by  persons  in  whose  custody  the  property  remains  after  their 
temporary  rightful  possession  has  expired,  or  by  persons  who 
have  obtained  its  custody  by  fraud  or  deceit.    The  law  of  em- 


§  568  CRIMES  AGAINST  PROPERTY  635 

hezzlement  pro\'ide.s  for  cases  of  wrongful  conversion  by  persons 
upon  whom  the  owner  has  voluntarily  and  intelligently  con- 
ferred a  temporary  possession,  so  far  as  the  State  deems  it 
expedient  to  treat  such  conversions  as  crimes.  There  remain 
the  wrongs  committed  by  persons  who  fraudulently  obtain, 
with  the  owner's  consent,  either  the  temporary  possession  of 
personal  property,  or  its  permanent  possession,  or  its  ultimate 
title  and  ownership.  With  these  the  list  of  possible  injuries, 
which  deprive  the  owner  of  his  property,  becomes  complete. 
The  wrongs  inflicted  by  those  who  fraudulently  acquire  a  tem- 
porary possession  of  the  property  demand  no  specific  public 
interference.  The  consent  of  the  owner  of  the  property  to  its 
possession  is  revocable  at  his  pleasure;  the  possession  of  the 
wrongdoer  then  becomes  mere  custody,  and  his  subsequent 
appropriation  of  it  will  be  theft.  But  to  procure  by  fraud  the 
permanent  possession  or  the  ownership  is  made  criminal  by 
statute,  and  is  known  as  false  pretences.  A  false  pretence  con- 
sists of  any  false  representation  concerning  past  or  existing 
facts,  which  the  representer  knows  to  be  untrue,  and  which  he 
makes  for  the  purpose  of  inducing  the  owner  to  part  with  his 
property.  When  such  a  representation,  being  in  good  faith  and 
with  due  caution  accepted  and  relied  on  by  the  owner  of  the 
property,  influences  him,  either  alone  or  in  connection  with  other 
circumstances,  to  transfer  the  property  to  other  persons  to  his 
own  injury,  the  crime  of  false  pretences  is  committed.  The  repre' 
sentation  may  be  made  by  words  or  signs  or  any  other  method 
of  conveying  information.  It  must  relate,  in  part  at  least  to 
past  or  existing  facts  and  not  merely  to  future  acts  or  conditions, 
since  no  man  can  act  with  due  care  if  lie  relies  wholly  on  the 
promises  or  prophecies  of  others;  but  though  it  be  in  form  a 
projJiecy  or  promise,  yi^i  if  it  necessarily  implies  past  or  existing 
facts,  it  will  be  an  assertion  of  those  facts  and  a  sufficient  repre- 
sentation. The  facts  falsely  alleged  must  be  of  such  a  character 
that  the  owner  of  the  property,  wliile  acting  with  ordinary 
prudence,  might  have  been  induced  by  them  to  transfer  it,  and 
must  have  been  so  far  the  moving  cause  of  his  decision  that 
but  for  them  and  their  effect  upon  his  mind  the  property  would 
not   have  been   transferred. 


636  ELEMENTARY  LAW  §  569 

Rem.  Whether  the  transfer  of  the  property  affects  its  perma- 
nent possession  or  its  ownership  is  immaterial  as  to  this  crime. 
The  wrong  done  in  either  case  is  practically  the  same.  In 
reference  to  the  title  which  the  representer  acquires  in  the  prop- 
erty, the  rights  he  could  confer  on  others,  and  the  civil  remedy  of 
the  true  owner  against  him,  the  distinction  may  be  important, 
and  would  depend  on  the  intention  of  the  owner  as  expressed  in 
the  contract  by  which  the  transfer  was  effected. 

Read:  Hawley,  Criminal  Law,  pp.  197,  201,  202,  212-224; 
Desty,  Criminal  Law,  §§  149-149  i; 
May,  Law  of  Crimes,  §§  305-317; 
Clark  and  Marshall,  Criminal  Law,  §§  355-369; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §§  103,  104; 
Kenney,  Criminal  Law,  pp.  227-237; 
Archbold,  Criminal  Procedure,  pp.  1376-1412; 
2  Bishop,  Criminal  Law,  §§  409-488; 
Wharton,  Criminal  Law,  §§  1130-1235; 
McClain,  Criminal  Law,  §§  657-659,  665-710. 


§  569.     Of  Forgery. 

Forgery  is  the  false  and  fraudulent  making  or  alteration  of 
any  writing  wliich  upon  its  face  imports  a  legal  obligation.  Any 
form  of  instrument  by  which  one  person  can  become  obligated 
to  another,  whether  to  pay  money,  render  service,  forego  a 
right,  or  respond  in  damages  is  a  writing  subject  to  forgery. 
Any  alteration  in  such  an  instrument,  in  any  particular  whereby 
its  legal  effect  is  varied,  is  a  sufficient  alteration  to  constitute 
a  forgery.  An  alteration  is  false  when  made  by  any  person  who 
has  no  right  to  make  it;  and  is  fraudulent  when  made  with 
intent  that  the  false  instrument  shall  be  used  or  received  as  valid. 
No  intent  to  defraud  any  specific  person  is  necessary ;  a  purpose 
to  inflict  a  loss  upon  the  pretended  maker  of  the  instrument,  or 
upon  its  receiver,  or  upon  some  third  party  to  whom  it  relates, 
or  even  upon  unknown  parties  into  whose  hands  it  may  come 
or  whom  it  may  mislead,  brings  the  act  within  the  prohibitions 
of  the  law.  The  forgery  is  completed  by  the  making  or  altera- 
tion of  the  instrument  with  intent  to  defraud,  although  it  may 
never  be  used  and  no  one  may  be  actually  defrauded. 

Rem.  Uttering  a  forged  instrument  is  an  offence  distinct  from 
that  of  its  preparation.  It  consists  in  the  act  of  offering  or  deliv- 
ering to  another  an  instrument,  known  to  the  utterer  to  be 
forged,  for  the  purpose  of  defrauding  the  recipient  or  some  otlier 


1 


§  570  CRIMES   AGAINST  PROPERTY  637 

person  to  whom  it  may  be  transferred  by  him.  The  uttcrer  may 
be  a  different  person  from  tiie  forger,  and  may  have  himself  in- 
nocently received  the  instrument,  —  as  by  finding  it,  or  taking  it 
in  the  ordinary  course  of  business.  The  uttering  is  complete 
when  the  instrument  has  been  so  presented  to  the  other  person  as 
to  have  been  likely  to  deceive  him,  whether  he  accepts  it  or  not, 
and  even  though  the  utterer  does  not  intend  to  surrender  its  pos- 
session, —  as  in  the  case  of  a  forged  receipt  exhibited  to  a  creditor 
in  answer  to  his  demand  for  the  payment  of  a  bill.  If  the  instru- 
ment on  its  face  purports  to  create  a  vaHd  legal  obligation,  the 
mere  offer  of  it  is  sufficient;  if  explanations  or  affirmations  are 
necessary  to  make  the  recipient  comprehend  its  nature,  and  rely 
upon  its  genuineness,  these  must  accompany  the  offer  in  order  to 
constitute  an  uttering.  At  this  point  the  crime  borders  upon  that 
of  false  pretences  which  can  be  committed  by  means  of  writings 
which  are  not  subjects  of  forgery,  and  by  uses  of  forged  papers 
which  do  not  amount  to  uttering. 

Read:  4  Bl.  Com.,  pp.  247-249; 

Hawley,  Criminal  Law,  pp.  225-233; 

Desty,  Criminal  Law,  §§  150-150  5; 

May,  Law  of  Crimes,  §§  329-335 ; 

Clark  and  Marshall,  Criminal  Law,  §§  392-399; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §§  111-114; 

Kenney,  Criminal  Law,  pp.  240-247; 

2  Russell  on  Crimes,  pp.  564-641 ; 

Archbold,  Criminal  Procedure,  pp.  1563-1640; 

2  Bishop,  Criminal  Law,  §§  521-612; 

Wharton,  Criminal  Law,  §§  653-747; 

McClain,  Criminal  Law,  §§743-773. 

§  570.     Of  Counterfeiting. 

Cmmterj citing,  properly  so  called,  is  the  fraudulent  making 
of  false  coin  in  the  similitude  of  the  genuine.  The  name  as 
well  as  the  crime  is  now  extended  to  embrace  the  false  making 
of  paper  money,  official  stam])s,  and  other  tokens  issued  by  the 
State  and  having  general  circulation  among  the  citizens.  Coim- 
terfeiting  contains  an  element  of  trea.son,  and  was  enumcra((>d 
as  such  among  the  seven  treasons  of  the  25  Edw.  Ill  (a.d.  1350). 
The  use  of  counterfeit  mon(>y  in  order  to  defraud  is  one  species 
of  cheating,  and  is  a  crime  against  public  trade.  In  some  of 
its  phases  it  is  also  an  offence  against  the  projjcrty  of  individuals. 
Many  of  its  forms,  such  as  the  making  of  false  bank  notes,  and 
other  tokens  importing  a  legal  obligation,  contain  all  the  in- 
gredients of  forgery.     The  principal  dillerence  between  forgery 


638  ELEMENTARY   LAW  §  571 

and  counterfeiting  resides  in  the  fact  that  the  subjects  of  coun- 
terfeiting are  intended  and  used  for  general  circulation  among 
the  people,  by  whom  they  are  taken,  without  close  examination, 
for  what  they  appear  to  be;  while  an  instrument,  whatever 
may  be  its  appearance,  is  not  the  subject  of  forgery  unless  it 
imports  a  legal  obligation.  Hence  to  impose  upon  the  public, 
which  judges  only  by  appearances,  the  counterfeit  must  have 
the  similitude  of  the  genuine  in  such  particulars  as  will  cause 
it  to  be  taken  for  the  genuine,  and  yet  need  correspond  with  it 
no  more  closely  than  may  be  sufficient  to  deceive  the  public 
as  it  circulates  among  them.  The  crime  is  completed  by  the 
making  of  the  false  coin  or  token  for  a  fraudulent  purpose, 
though  no  attempt  may  be  made  to  use  it. 

Rem.  Uttering  counterfeit  coins  or  tokens  is  a  distinct  crime 
from  the  making,  and  can  be  committed  by  one  who  took  the 
coin  or  token  in  good  faith  if,  after  discovering  its  true  char- 
acter, he  endeavors  to  pass  it  off  to  others. 

Read:  Desty,  Criminal  Law,  §§  151-151  d; 
May,  Law  of  Crimes,  §  336; 

1  Russell  on  Crimes,  pp.  207-248 ; 
Archbold,  Criminal  Procedure,  pp.  1669-1676; 

2  Bishop,  Criminal  Law,  §§  274-300; 
Wharton,  Criminal  Law,  §§  748-755; 
McClain,  Criminal  Law,  §§  774-810. 


§  571.     Of  Malicious  Mischief. 

Malicious  mischief  is  the  wilful  and  malicious  injury  or  de- 
struction of  the  property  of  another.  Any  property,  real  or 
personal,  may  be  the  subject  of  this  crime;  the  particular 
kinds  of  property  and  the  specific  acts  of  injury  being  gen- 
erally defined  by  local  statutes.  In  order  to  be  malicious  the 
mischief  must  be  wilful  as  distinguished  from  accidental ; 
must  be  wrongful  as  distinguished  from  lawful,  which  such  an 
injury  may  be  in  defence  of  property  or  person;  and  must 
be  prompted  by  a  spirit  of  ill-will  or  resentment  against  the 
owner  or  possessor  of  the  property. 

Rem.  Akin  to  this  crime,  and  often  passing  under  the  same 
name,  are  numerous  injuries  to  pubhc  and  private  property, 
committed  without  malice  toward  any  person  but  in  sheer  wan- 


§§  572,  573  IMPERFECT  CRIMES  639 

tonness,  and  with  an  unconscious  disregard  of  the  owner's  right, 
—  such  as  the  defacing  of  pubHc  monuments,  desppiUng  ceme- 
teries or  parks,  or  cutting  or  plucking  plants  on  private  premises. 
The  tendency  to  elevate  mere  private  torts  into  crimes  in  this 
direction  is  very  marked,  and  may  be  justified  by  the  necessity 
for  such  protection  in  view  of  the  uncertainty,  expense,  and 
delay  attending  the  pursuit  of  private   remedies. 

Read:  4  BI.  Com.,  pp.  243-247; 

Desty,  Criminal  Law,  §§  144-144/; 

May,  Law  of  Crimes,  §§  321-323; 

Clark  and  Marshall,  Criminal  Law,  §§  388-391,  429; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §  110; 

Kenney,  Criminal  Law,  pp.  161-164; 

Archbold,  Criminal  Procedure,  pp.  1469-1562; 

2  Bishop,  Criminal  Law,  §§  983-1000; 

Bishop,  Statutory  Crimes,  §§  430-449; 

Wharton,  Criminal  Law,  §§  1065-1082  d; 

McClain,  Criminal  Law,  §§  811-835,  1161-1168. 

§  572.     Of  Piracy. 

Piracy  is  not  only  a  crime  against  the  law  of  nations,  and 
punishable  by  any  State  into  whose  custody  the  pirate  may  be 
brought,  but  it  is  also  frequently  extended  by  local  laws  be- 
yond its  international  definition,  and  made  to  cover  a  variety 
of  other  depredations  upon  navigable  waters  and  their  shores. 
Jurisdiction  over  such  locally  defined  offences  vests  exclusively 
in  the  State  by  which  they  are  prohibited,  and  affects  only 
those  guilty  persons  who  are  subjects  of  that  State  or  of  no 
State  whatever,  or  who  have  committed  the  offence  upon  the 
vessels  or  in  the  territory  belonging  to  that  State. 

Rem.  When  injuries  prohibited  by  local  laws  are  perpetrated 
by  subjects  of  a  foreign  State,  upon  a  foreign  vessel,  the  laws  and 
courts  of  that  foreign  State  alone  have  jurisdiction  over  them. 

Read:  May,  Law  of  Crimes,  §§  338,  339; 
Kenney,  Criminal  Law,  pp.  304-307. 

SECTION    V 

OF    IMPERFECT    CRIMES 

§  573.     Of  Perfect  and  Imperfect  Crimes. 

A  wrong  when  completed  comjjri.sos  both  a  cause  and  a 
consequence,  —  a  cause  consisting  of  some  action  or  omission 


640  ELEMENTARY   LAW  §  574 

prohibited  by  law;  a  consequence  proximately  and  naturally 
arising  from  that  cause,  and  injuriously  affecting  or  liable  to 
affect  public  or  private  rights.  A  crime,  being  a  wrong,  is 
not  perfect  unless  it  includes  a  consequence  which  is  actually 
or  potentially  injurious  without  farther  action  or  omission  on 
the  part  of  the  offender.  This  is  manifest  even  in  such  crimes 
as  forgery  and  counterfeiting  where,  though  no  one  may  have 
been  defrauded,  the  false  instruments  or  tokens  have  within 
themselves  the  power  of  miscliief  without  additional  assistanc«e 
from  their  maker.  A  crime  from  which  no  consequence  can 
yet  result  is,  therefore,  an  imperfect  crime.  If  it  consists  of 
physical  actions  which  produce  no  injurious  effects,  it  is  then 
called  an  attempt.  If  it  stops  short  of  actions  and  is  a  mere 
agreement  with  others  to  commit  a  wrong,  it  is  then  known  as 
a  conspiracy.  If  it  is  a  mere  manifestation  of  desire  that  some 
other  person  should  perpetrate  a  wrong  it  receives  the  name 
of  a  solicitation. 

Rem.  That  these  imperfect  wrongs  should  be  regarded  as 
crimes,  and  be  forbidden  by  the  law,  is  justified  by  the  fact  that 
it  is  the  duty  of  the  State  to  prevent  as  well  as  punish  crimes, 
and  thus  to  interrupt,  as  far  as  possible,  the  course  of  intended 
wrong. 

Read:  Wharton,  Criminal  Law,  §§  152-169; 
McClain,  Criminal  Law,  §  219. 

§  574.     Of  Attempts. 

An  attempt  consists  in  the  intent  to  commit  a  crime  combined 
with  the  performance  of  some  act  adapted  to,  but  falling  short 
of,  its  actual  commission.  The  act  performed  must  bear  toward 
the  intended  crime  a  causal  relation,  either  actual  or  apparent, 
and  must  not  consist  in  mere  preparations  to  commit  it,  —  a 
distinction  not  always  easy  to  apply  in  practical  cases,  nor 
clear  to  the  judicial  mind,  as  is  evident  from  such  conflicting 
decisions  as  those  which  hold  that  to  procure  a  gun  to  kill  a 
neighbor  was  only  preparation,  but  to  obtain  a  false  key  to 
unlock  a  door  was  an  attempt.  It  is  not  necessary  that  the 
act  performed  perfect  the  causal  chain,  leaving  the  consequences 
to  follow  unless  interrupted  by  extrinsic  circumstances;  it 
is  sufficient  if  one  act  of  the  causal  series  be  committed  with 


§  574  IMPERFECT  CRIMES  641 

intent  to  follow  it  with  others  till  the  series  is  complete.  Thus 
the  insertion  of  a  false  key  into  the  lock  of  a  dwelling-house 
door,  in  the  night  season,  with  the  intent  then  and  there  to 
enter  and  commit  a  felony  is  an  attempt  to  perpetrate  a  burglary 
althougii  the  key  is  not  yet  turned,  nor  the  door  unlocked  nor 
opened. 

Rem.  In  order  to  comprehend  the  true  character  of  an  attempt 
as  an  imperfect  crime  it  is  necessary  to  distinguish  it  both  from 
cases  where  the  act  performed,  though  innocent  in  itself,  ac- 
complishes the  injurious  result  intended  and  thereby  becomes  a 
perfect  crime,  and  from  cases  where  the  act  performed  is  in  itself 
a  crime  irrespective  of  its  intention,  but  becomes  aggravated 
by  the  unfulfilled  specific  intent  with  which  it  was  committed. 
These  latter  cases,  such  as  assaults  with  intent  to  rob  or  kill,  are 
often  called  attempts,  and  this  they  truly  are  in  reference  to  their 
intended  but  unattained  result ;  but  considered  in  themselves 
they  are  complete  in  cause  and  consequence  and  hence  are  per- 
fect crimes.  An  attempt,  as  an  imperfect  crime,  is  an  act  which 
is  not  criminal  in  itself,  nor  followed  by  consequences  which 
make  it  criminal,  but  is  made  criminal  by  law  because  performed 
with  an  intent  thereby  to  perpetrate  or  to  aid  in  perpetrating  a 
perfect  crime.  In  reference  to  attempts  a  most  important  ques- 
tion frequently  arises ;  namely,  whether  a  person  can  attempt  a 
crime  which,  under  the  circumstances,  he  is  unable  to  commit  ? 
To  answer  this  question  properly  it  must  be  divided,  and  applied 
separately  to  each  of  the  two  elements  of  which  an  attempt  is 
composed.  Firstly,  then  can  a  person  intend  an  impossible  re- 
sult? Undoubtedly  he  can,  provided  he  does  not  know  that  it  is 
impossible.  Secondli/,  can  there  be  a  true  causal  relation  between 
an  act  and  a  result  which  it  cannot  possibly  accomplish  ?  Cer- 
tainly not,  for  wherever  a  true  causal  relation  exists  the  efi'ect  is 
potentially  present  in  the  cause,  and  the  operation  of  the  cause 
must  produce  the  effect  unless  extrinsic  forces  interfere.  Hence, 
if  the  act  which  constitutes  a  part  of  the  alleged  attempt  cannot, 
from  the  very  nature  of  the  case,  be  followed  by  the  consequences 
intended  by  the  actor,  the  actor  is  not  guilty  of  an  attempt.  To 
prevent  the  escape  of  an  intending  criminal,  on  the  ground  that 
the  result  he  had  in  view  was  unattainable,  some  courts  have  held 
that  an  apparent  causal  relation  between  the  act  performed  and 
the  intended  result  would  l)e  sufKcient  to  make  the  act  an  at- 
tempt. But  this  doctrine  is  of  doubtful  validity.  For  since  the 
actor  would  never  have  performed  the  act  if  he  had  known  that  no 
true  causal  relation  existed  between  his  act  and  the  intended 
crime,  and  since  he  could  not  have  intended  what  he  knew  to  be 

41 


C42  ELEMENTARY  LAW  §  575 

impossible,  and  since  the  act  is  innocent  apart  from  the  intent, 
his  sole  guilt  consists  in  a  mental  error,  —  in  falsely  supposing 
that  an  action  itself  innocent  would  accomplish  an  unattainable 
result,  which  if  it  could  have  been  accomplished  would  have 
been  a  crime.  To  treat  this  mental  error  as  a  criminal  offence 
is  to  punish  him  for  a  mere  operation  of  his  mind  and  will.  A 
sounder  judgment  is  exhibited  by  those  tribunals  which  adhere 
rigidly  to  the  distinction  between  the  perfect  crimes  which  are 
aggravated  by  their  combination  with  a  specific  intent  thereby 
to  perpetrate  a  greater  crime;  those  actions  or  omissions  which 
not  being  criminal  in  themselves  become  imperfect  crimes  through 
their  true  causal  relation  to  an  intended  criminal  result;  and 
those  which,  though  performed  in  the  vain  hope  of  perpetrating  a 
mischief  which  is  inherently  impossible,  are  neither  criminal  in 
themselves  nor  are  made  criminal  by  the  mistaken  opinion  of  the 
actor  concerning  their  relation  to  a  criminal  result. 

Read:  Clark,  Elementary  Law,  §  91; 
Hawley,  Criminal  Law,  pp.  90-96; 
Desty,  Criminal  Law,  §§  12-12  b; 
May,  Law  of  Crimes,  §§  18,  183-184  a; 
Clark  and  Marshall,  Criminal  Law,  §§  119-129; 
Clark,  Criminal  Law  (Tiffany  Ed.),  §§  55,  56; 
Kenney,  Criminal  Law,  pp.  72-76; 
1  Russell  on  Crimes,  pp.  195-199; 
Archbold,  Criminal  Procedure,  pp.  79,  896-898; 
1  Bishop,  Criminal  Law,  §§  723-772  a; 
Wharton,  Criminal  Law,  §§  173-200; 
McClain,  Criminal  Law,  §§  221-229. 


§  575.     Of  Conspiracy. 

Conspiracy  is  the  agreement  of  two  or  more  persons  to  injure 
a  third  person  or  the  public  by  doing  some  unlawful  act,  or 
by  doing  some  lawful  act  in  an  unlawful  manner.  A  con- 
spiracy cannot  be  committed  by  one  person  alone,  nor  by 
husband  and  wife  alone  because  they  are  legally  a  single  person. 
Nor  is  an  agreement  by  two  or  more  persons  to  perform  an 
act  which  affects  only  themselves  a  conspiracy,  —  such  as  to 
commit  adultery  or  engage  in  an  affray;  the  combined  in- 
jurious force  must  be  directed  against  parties  outside  the  con- 
spiracy. Between  the  conspirators  there  must  be  a  concert  of 
will  and  endeavor,  not  a  mere  coincidence  of  intention  or  at- 
tempt. The  act  which  forms  the  subject  of  the  agreement  may 
be  in  itself  a  crime;   or  it  may  be  a  tort  whose  injurious  effects 


§  575  IMPERFECT    CRIMES  643 

will  be  aggravated  when  inflicted  by  a  multitude;  or  it  may 
be  an  act  not  wrongful  in  itself  but  to  be  performed  in  a  for- 
bidden manner  or  degree  or  for  a  malicious  purpose ;  or  it  may 
be  an  act  which,  though  lawful  in  itself  and  in  its  method,  will 
become  vexatious  and  injurious  if  committed  at  the  same  time 
by  many  persons.  Examples  of  these  acts  are  found  in  con- 
spiracies to  extort  money,  to  injure  reputation,  to  cheat  and 
defraud,  to  suppress  competition  in  trade,  to  exclude  others 
from  employment,  or  to  destroy  domestic  peace;  although  the 
acts  performed  are  in  themselves  innocent,  their  methods 
reasonable,  and  their  consequences  when  committed  by  a 
single  individual  not  sufficiently  injurious  to  require  the  inter- 
ference of  the  law. 

Rem.  The  practical  distinction  between  a  lawful  combina- 
tion and  a  conspiracy  lies  in  the  scope  and  purpose  of  the  agree- 
ment. Any  number  of  persons  may  in  good  faith  combine  for 
their  own  protection  and  advancement,  if  they  perform  no  acts 
which  are  unlawful  either  in  their  substance  or  their  method, 
although  the  indirect  result  of  the  combination  may  be  yjrejudicial 
to  others.  But  they  must  not  combine  T\ith  a  malicious  intent  to 
produce  that  indirect  result  through  the  same  lawful  acts,  nor 
purposely  employ  their  combined  energies  against  the  public,  nor 
against  the  persons  or  property  of  their  unofl'ending  neighbors. 
Where  a  conspiracy  exists  it  is  a  complete  although  an  imperfect 
crime,  without  the  commission  of  any  overt  act  in  pursuance  of 
the  agreement,  unless  the  local  law  makes  such  an  act  a  neces- 
sary ingredient  of  the  crime.  If  the  agreement  be  to  perpetrate 
a  felony,  and  the  felony  is  committed,  the  conspiracy  is  merged  in 
the  felony,  which  then  becomes  the  act  of  each  and  all  the  parties 
to  the  agreement  unless  they  ojienly  retracted  before  the  felony 
was  commenced. 

Read:  4  Bl.  Com.,  pp.  1.36,  137; 

Hawley,  Criminal  Law,  pp.  99-115; 

Desty,  Criminal  Law,  §§  11-11  h; 

May,  Law  of  Crimes,  §§  18&-191 ; 

Clark  and  Marshall,  Criminal  Law,  §§  134-149; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §§  58-60; 

Kenncy,  Criminal  Law,  pp.  273-279; 

1  Russell  on  Crimes,  pp.  501-552; 
Archbold,  Criminal  Procedure,  pp.  1829-1847; 

2  Bishop,  Criminal  Law,  §§  169-240; 
Wharton,  Criminal  Law,  §§  1337-1407; 
McClain,  Criminal  Law,  §§  952-990. 


644  ELEMENTARY  LAW  §  576 

§  576.     Of  Solicitation. 

Solicitation  is  the  inciting  or  persuading  of  another  to  commit 
a  felony,  or  other  heinous  crime.  The  sohcitation  is  complete 
though  the  person  solicited  refuse;  but  if  he  consents  and  acts 
on  the  solicitation  the  solicitor  becomes  a  party  to  his  crime. 
If  the  crime  is  undertaken,  and  is  not  accomplished,  the  solicitor 
would  be  a  participator  in  the  attempt. 

Rem.  Where  the  crime  is  a  felony,  and  is  committed  in  re- 
sponse to  the  solicitation,  the  solicitor  is  an  accessary  before  the 
fact.  If  the  crime  is  a  misdemeanor  and  the  solicitor  is  noticed 
at  all  by  the  law,  he  is  treated  as  a  principal,  and  guilty  of  the 
crime  itself. 

Read:  Desty,  Criminal  Law,  §  12  c; 
May,  Law  of  Crimes,  §§  19,  185; 
Clark  and  Marshall,  Criminal  Law,  §§  130-133; 
Clark,  Criminal  Law  (Tiffany  Ed.)    §  57; 
McCIain,  Criminal  Law,  §  220. 


§  577  CRIMINAL    PROCEDURE  645 


PART    II  — OF    CRIMINAL    PROCEDURE 

§  577.     Of  the  Prosecution  and  Punishment  of  Crime. 

Crimes  are  punished  by  the  State  in  various  nietliods,  some 
with  and  some  without  formal  legal  proceedings.  Instances  of 
punishment  without  formal  legal  proceedings  are  found  in  the 
confiscation  of  smuggled  goods;  in  the  destruction  of  public 
nuisances ;  in  removals  from  office  for  violation  of  duty ;  in  the 
infliction  of  penalties  for  contempt;  and  in  many  other  sum- 
mary acts  of  executive  or  judicial  bodies.  In  general,  when 
criminal  procedure  is  discussed  reference  is  made  only  to  public 
prosecution  in  the  criminal  courts ;  all  other  proceedings  being 
exceptional  and  occasional,  however  numerous  they  may  be. 
To  these  courts,  and  their  methods  of  pursuing  and  punishing 
crime,  the  present  explanations  will  therefore  be  confined. 

Rem.  Besides  the  ancient  and  more  formidable  processes  of 
a  regularly  constituted  criminal  court  crimes  arc  sometimes 
prosecuted  in  qui  tarn,  actions,  in  which  an  informer  sues  for  the 
penalty  on  his  own  behalf  as  well  as  on  that  of  the  State;  or  in 
suits  for  penalties  in  some  special  statutory  method  as  provided 
by  the  local  law ;  or  in  prosecutions  under  municipal  by-laws. 
None  of  these  proceedings  supersede  the  ordinary  prosecutions 
instituted  by  the  State  in  its  own  name,  or  prevent  the  offender 
from  being  subse(iuently  tried  and  punished  in  the  criminal  courts. 

Read:  3  Bl.  Com.,  pp.  159,  160; 
4  Bl.  Com.,  pp.  280-288; 
Wharton,  Criminal  Pleading,  §§  947-975; 
Clark,  Criminal  Procedure,  Introduction; 
Abbott,  Criminal  Brief,  pp.  1.3-1.'); 
Hocliheimer,  Crimes  and  Criminal  Procedure,  §§  02,  200-208. 


646  ELEMENTARY  LAW  §  578 


CHAPTER   I 

OF    CRIMINAL    COURTS    AND    THEIR   JURISDICTION 

§  578.     Of  Criminal  Courts. 

A  criminal  court  is  a  tribunal  established  by  the  State  for  the 
trial  and  judgment  of  persons  accused  of  crime.  It  is  composed 
of  a  judge,  a  clerk,  and  a  sheriff;  to  whom  may  be  added  a 
jury.  It  also  embraces  a  -prosecuting  officer  whose  duty  it  is  to 
inquire  into  cases  of  suspected  crime,  and  present  them,  with  the 
evidence  as  to  their  commission,  to  the  judge  and  jury  for  their 
examination  and  decision.  This  officer  is  not,  as  might  often 
be  supposed  from  his  actual  conduct,  a  partisan  of  the  State 
against  the  accused,  commissioned  to  secure  his  conviction  by 
all  available  means;  but  a  minister  of  public  justice  who,  on 
behalf  of  the  State,  endeavors  to  lead  the  judge  and  jury  to  a 
correct  conclusion,  and  is  therefore  bound  to  disclose  to  them 
the  circumstances  favorable  to  the  prisoner  as  well  as  those 
which  militate  against  him.  The  other  members  of  the  tribunal 
have  the  same  functions  as  in  civil  courts. 

Rem.  In  criminal  courts  preventive  as  well  as  punitive  reme- 
dies may  be  applied,  though  naturally  the  former  are  of  rare 
occurrence  since  crime  is  not  ordinarily  anticipated  before  its 
commission.  These  preventive  remedies  in  many  points  resemble 
injunctions  issuing  out  of  courts  of  equity.  They  consist  in  com- 
pelling the  person,  whose  criminal  purposes  are  reasonably 
demonstrated  by  his  preparations,  threats,  or  general  conduct, 
to  enter  into  a  recognizance  with  sureties  before  a  proper  court, 
pledging  him  under  suitable  penalties  to  keep  the  peace,  and  to 
refrain  from  the  commission  of  the  anticipated  crime.  Punitive 
remedies,  on  the  other  hand,  follow  the  general  outline  of  the  pro- 
ceedings in  the  courts  of  common  law.  To  the  writ  corresponds 
the  warrant;  to  the  service  of  process,  the  arrest,  commitment, 
and  bail ;  to  the  declaration,  the  indictment,  information,  or 
complaint;  to  the  pleadings,  the  arraignment,  plea,  and  issue; 
thence  alike  in  both  tribunals,  the  trial,  verdict,  judgment  or  sen- 
tence, writ  of  error  and  fuial  execution. 


I 


§§  579,  580  CRIMINAL   PROCEDURE  647 

Read:  4  Bl.  Com.,  pp.  251-257,  289; 
May,  Law  of  Crimes,  §§  87-132; 
Wharton,  Criminal  Pleading,  §§  554-556; 
Rapalje,  Criminal  Procedure,  §§  1-6,  212-213; 
1  Bishop,  Criminal  Procedure,  §§  26-44,  278-294; 
HochJieimer,  Crimes  and  Criminal  Procedure,  §  89; 
Rice,  Criminal  Evidence,  §  219  c. 

§  679.     Of  the  Jiirisdiction  of  Criminal  Courts. 

Criminal  jurisdiction  is  the  authority  to  investigate  and  de- 
termine the  guilt  or  innocence  of  persons  accused  of  crime,  and 
to  punish  them  when  found  guilty.  It  includes  jurisdiction  over 
the  person  of  the  accused,  and  over  the  offence  with  which  he  is 
charged.  Jurisdiction  over  the  person  of  the  accused  is  acquired 
by  his  lawful  arrest,  and  his  presentation  at  the  bar  of  the  court 
to  answer  for  the  crime.  That  his  arrest  was  accomplished  by 
violence,  or  by  an  artifice  which  brought  him  within  reach  of 
process,  if  it  was  otherwise  lawful,  does  not  prevent  the  court 
from  obtaining  jurisdiction  over  him,  whatever  private  remedy 
he  may  have  against  the  persons  by  whom  he  was  entrapped  or 
confined.  Jurisdiction  over  the  ofjence  is  conferred  upon  the 
court  by  express  legislation,  and  depends  either  (1)  Upon  the 
locality  where  the  crime  was  committed ;  or  (2)  Upon  the  nature 
of  the  crime  itself;  or  (3)  Upon  the  character  or  degree  of  the 
penalty  which  the  law  imposes  on  the  offender. 

Rem.  Jurisdiction  over  the  person  of  the  accused  can  be  con- 
ferred not  only  by  his  lawful  arrest,  but  by  his  voluntary  appear- 
ance in  court  and  submission  to  its  authority.  Jurisdiction  over 
the  offence  cannot  be  created  by  his  consent,  but  only  by  complete 
compliance  with  all  the  conditions  prescribed  by  law. 

Read:  Clark,  Criminal  Procedure,  §§  1,  2,  21; 
May,  Law  of  Crimes,  §§  77-83; 
Clark  and  Marshall,  Criminal  Law,  §§  486-492; 
Hawley,  Interstate  Extradition,  pp.  96-99; 
1  Bishop,  Criminal  Law,  §§  99-203; 
1  Bishop,  Criminal  Procedure,  §§  314-316; 
Hochheimer,  Crimes  and  Criminal  Procedure,  §  68. 

§  580.     Of  the  Jurisdiction  of  Criminal  Courts  as  Dependent  on 
the  Locality  of  the  Crime. 

The  jurisdiction  of  a  criminal  court  is  derived  from  that 
of  the  State  by  wliich  the  court  was  established,  and  when  de 


648  ELEMENTARY  LAW  §  580 

pendent  on  locality  the  crime  must  have  been  committed  within 
the  area  to  which  the  authority  of  the  State  extends.  The  locality 
of  a  crime  is  that  particular  subdivision  of  the  State,  or  of  the 
United  States,  in  which  the  criminal  act  was  performed.  Where 
the  wrongful  action  or  omission  and  its  proximate  injurious 
consequences  occur  in  the  same  territorial  subdivision,  the 
criminal  act  is  there  begun  and  completed,  and  no  doubt  can 
exist  as  to  the  locality  of  the  crime.  But  where  the  wrongful 
action  or  omission  takes  place  in  one  subdivision,  and  its  proxi- 
mate consequences  arise  in  another,  the  crime  as  a  whole  is 
perpetrated  in  neither,  and  the  question  is  presented  whether 
either  or  both  or  neither  is  the  place  of  the  crime.  This  question 
has  received  various  answers.  Thus  in  a  homicide  where  the 
blow  was  given  in  one  county,  and  the  death  occurred  in  another, 
it  has  been  held  by  some  authorities  that  the  slayer  committed 
homicide  in  neither  county;  by  others,  that  the  county  where 
the  blow  was  given  was  the  place  of  the  crime;  by  others,  that 
the  locality  of  the  crime  was  that  of  the  death.  Logically,  where 
definite  consequences  must  follow  from  the  act  in  order  that 
the  act  may  constitute  a  crime  as  the  law  prohibits  it,  the  crime  is 
not  committed  till  the  consequences  have  been  produced,  and 
the  place  where  they  are  produced  is  the  locality  of  the  perfected 
crime.  This  doctrine  is  recognized  in  the  decisions  which  hold 
that  the  crimes  of  false  pretences,  robbery,  and  embezzlement 
are  perpetrated  in  the  county  where  the  property  is  obtained  or 
appropriated,  and  not  in  that  where  the  pretences  are  made  or 
the  violence  offered  or  the  possession  of  the  goods  entrusted  to 
the  agent.  But  when  the  legal  definition  of  the  crime  is  satisfied 
by  the  performance  of  the  act  in  such  a  manner  that  its  proxi- 
mate consequences  may  follow,  whether  or  not  they  ever  do 
occur,  the  crime  is  complete  where  the  act  is  committed,  and 
that  place,  therefore,  is  the  place  of  the  crime.  This  rule  is 
adopted  in  forgery,  where  the  locality  of  the  crime  is  the  place 
where  the  writing  was  falsely  made  or  altered;  in  libel,  where 
the  place  of  pubHcation  is  the  place  of  crime;  in  bigamy,  which 
is  perfected  where  the  second  marriage  is  performed;  and  in 
the  use  of  the  postal  service  for  improper  purposes,  whose 
locality  is  the  place  at  which  the  letter  has  been  mailed.  To 
meet  the  difficulties  sometimes  arising  in  the  settlement  of  this 


i 


§  580  CRIMINAL   PROCEDURE  649 

disputed  question  local  statutes  or  decisions  recognize  the  right 
of  the  State  to  prosecute  and  punish  the  offence  in  either  county. 
Another  question  is  presented  where  the  act  commences  in  one 
territorial  subdivision  and  continues  in  another,  in  which  also  it 
finally  becomes  a  completed  crime.  The  general  answer  to  this 
question  is  that  the  latter  subdivision  is  the  true  locaHty  of  the 
completed  crime,  though  the  former  is  the  place  of  an  attempt. 
Thus  one  who  shoots  at  another  across  the  boundary  of  two  ad- 
joining States  is,  if  he  kills  the  intended  victim,  guilty  of  the 
homicide  in  the  State  where  the  ball  takes  effect;  if  he  misses, 
he  is  guilty  in  both  States  of  an  attempt  to  kill.  A  third  question 
is  presented  when  two  or  more  persons  conspire  in  one  locality 
to  commit  a  crime  in  another,  and  in  pursuance  of  their  agree- 
ment the  crime  is  there  completed  by  one  of  them  in  the  absence 
of  the  others.  In  this  case  it  is  held  that  all  are  guilty  of  the  con- 
spiracy in  the  first  locality,  and  of  the  overt  act  in  the  second.  A 
fourth  question  relates  to  cases  in  which  a  guilty  party  in  one 
locality  commits  a  criminal  act  in  another  through  the  agency 
of  an  innocent  person.  Here,  though  the  guilty  party  may  never 
have  been  physically  present  in  the  locality  of  the  completed 
crime,  he  is  regarded  as  having  been  legally  present,  and  his 
crime  as  having  been  there  committed.  A  fifth  question  arises 
in  reference  to  continuing  crimes  which  are  complete  in  each  of 
several  successive  localities,  —  as  where  a  tliief  carries  the 
stolen  property  into  different  counties,  or  a  nuisance  spreads  its 
baleful  influence  into  various  jurisdictions.  In  each  of  these 
successive  places  it  is  usually  considered  that  a  new  crime  is 
committed  which  may  there  be  punished,  as  if  it  had  no  antece- 
dent locality.  Upon  all  these  questions,  pertaining  as  they  do 
to  technical  limitations  of  judicial  authority  rather  than  to  the 
guilt  or  innocence  of  the  accused,  the  modern  tendency  is  to 
remove  obstacles  to  justice  by  allowing  a  wide  latitude  to  public 
prosecutors;  and  permitting  them  to  institute  proceedings, 
either  in  the  locality  where  the  overt  criminal  act  is  commenced, 
or  where  it  is  continued  or  completed,  or  where  its  proximate 
consequence  results.  This  tendency  is  particularly  manifested 
by  statutes  which  provide  that  where  a  crime  is  perpetrated  so 
near  the  boundary  line  of  t.wo  localities  that  it  is  difficult  to  prove 
in  which  it  actually  occurred,  its  perpetrator  may  be  tried  and 


650  ELEMENTARY  LAW  §  580 

punished  in  the  courts  of  either,  if  jurisdiction  over  his  person 
can  be  obtained. 

Rem.  The  criminal  jurisdiction  of  the  Federal  courts  of  the 
United  States  covers  all  crimes  against  the  laws  of  the  United 
States  which  are  perpetrated  within  its  territory,  or  on  board 
vessels  sailing  under  its  flag,  or  by  its  citizens  in  foreign  coun- 
tries. The  territory  of  the  United  States  where  it  abuts  upon  the 
ocean  embraces  the  adjacent  seas  to  the  distance  of  a  cannon  shot 
from  shore ;  where  it  abuts  upon  the  territory  of  other  nations 
the  boundary  is  fixed  by  treaty.  The  criminal  jurisdiction  of 
the  Federal  courts  is  distributed  between  the  Circuit  Courts,  the 
District  Courts,  and  the  Commissioners.  The  Circuit  Courts  have 
exclusive  jurisdiction  over  all  capital  offences,  and  concurrent 
jurisdiction  with  the  District  Courts  over  all  other  crimes  against 
the  laws  of  the  United  States  which  are  committed  within  their 
respective  circuits.  The  District  Courts  have  jurisdiction  over 
all  offences  less  than  capital  against  the  laws  of  the  United  States 
which  are  committed  within  their  respective  districts  or  which, 
having  been  perpetrated  outside  the  limits  of  all  the  districts,  are 
prosecuted  within  the  district  into  which  the  offender  is  first 
taken  after  his  arrest.  The  Commissioners,  who  in  their  official 
rank  and  functions  resemble  justices  of  the  peace,  have  juris- 
diction over  preliminary  criminal  proceedings.  Appellate  juris- 
diction is  lodged  in  the  Circuit  Court  of  Appeals,  and  over  the 
most  important  cases  in  the  Supreme  Court  of  the  United  States. 
The  criminal  jurisdiction  of  the  different  States  of  the  American 
Union  is  coterminous  with  their  political  boundaries,  except  with 
reference  to  certain  acts  against  the  State  by  its  own  subjects  out- 
side its  territory,  such  as  adhering  to  its  enemies  or  embezzUng 
its  funds.  The  territorial  limits  of  these  States  where  they  lie 
upon  the  national  borders  of  the  United  States,  coincide  with  its 
external  boundaries;  where  they  abut  on  other  States  they  are 
defined  by  colonial  charters  or  by  subsequent  conventions,  or  by 
the  Acts  of  Congress  admitting  the  several  States  into  the  Union. 
Their  principal  criminal  tribunals  are  the  courts  of  Justices  of 
the  Peace,  the  Police  Courts,  the  County  Courts,  and  a  higher 
Court  of  Appeals.  Justices  of  the  Peace  and  Police  Courts  are 
inferior  judicial  functionaries  charged  with  the  prosecution  and 
punishment  of  inferior  offences  occurring  within  their  respective 
towns,  cities,  or  districts,  and  with  the  preliminary  proceedings 
in  reference  to  more  grievous  crimes.  The  County  Courts,  under 
various  names  and  divisions,  have  original  jurisdiction  over  the 
crimes  committed  within  their  respective  counties,  and  usually 
an  appellate  jurisdiction  over  convictions  in  the  inferior  tribu- 
nals   of   the   towns   and  cities   comprised  within   the   county. 


§  581  CRIMINAL    PROCEDURE  651 

Courts  of  Appeals,  also  of  different  degrees  and  designations,  are 
courts  of  last  resort  for  the  determination  upon  error  or  appeal 
of  questions  of  law  arising  in  the  cases  prosecuted  in  the  lower 
courts.  Thus  every  territorial  subdivision  in  the  States  and  the 
United  States  has  its  own  local  courts,  in  which  proceedings  grow- 
ing out  of  crimes  committed  in  that  particular  locality  must  be 
conducted;  their  place  of  prosecution  being  technically  known 
as  the  venue,  and  always  corresponding  with  the  locality  of  the 
crime. 

Read:  Archbold,  Criminal  Procedure,  pp.  780-784; 

Clark,  Criminal  Procedure,  §  3; 

Hawley,  Criminal  Law,  pp.  66-76; 

Clark  and  Marshall,  Criminal  Law,  §§  493-51H; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §§  165-168; 

Wharton,  Criminal  Law,  §§  252-295; 

1  Bishop,  Criminal  Procedure,  §§  45-67; 

Hochheimer,  Crimes  and  Criminal  Procedure,  §  53. 

§  581.     Of  the  Jurisdiction  of  Criminal  Courts  as  Dependent  on 
the  Nature  or  Punishment  of  the  Crime. 

Jurisdiction  is  conferred  upon  criminal  courts  cither  by  the 
constitutions  or  the  statutes  of  the  States  from  which  they  derive 
their  powers,  and  in  these  instruments  various  limitations  are 
prescribed  within  which  such  courts  are  to  e.xercise  their  judicial 
authority.  A  primary  distinction  is  here  drawn  between  the 
Federal  and  State  courts  by  an  Act  of  Congress  which  bestows 
exclusive  jurisdiction  on  the  Federal  courts  over  all  offences 
made  punishable  by  the  laws  of  the  United  States.  All  these 
offences  are  defined  and  prohibited  by  the  Federal  Constitution, 
or  the  treaties  and  statutes  made  under  its  authority,  since  the 
United  States,  as  a  nation,  has  no  unwritten  substantive  criminal 
law.  What  actions  or  omissions  can  thus  be  made  crimes  by 
Federal  legislation  (l('|K'nds  upon  their  relation  to  the  national 
welfare.  Within  the  hmits  of  its  sovereignty,  external  and  inter- 
nal, the  United  States  has  power  to  forbid  any  conduct  pre- 
judicial to  its  national  interests  or  to  the  protection  which  it  owes 
its  citizens.  Outside  these  limits  it  has  no  autiiority  to  clothe 
any  wrongful  action  or  omission  with  the  character  of  crime. 
On  the  same  principle,  the  State  courts  have  exclusive  jurisdic- 
tion over  all  crimes  committed  against  their  written  or  unwritten 
laws.  Each  State  has  authority  to  prohibit  and  punish  any  ac- 
tion or  omission  injurious  to  its  sovereignty  or  the  welfare  of  its 


652  ELEMENTARY  LAW  §  582 

citizens,  although  the  same  action  or  omission  may  be  made  a 
crime,  on  other  grounds,  by  Federal  legislation;  and  in  such 
cases  the  action  or  omission  is,  in  law,  two  separate  crimes,  one 
of  which  may  be  prosecuted  in  the  Federal  courts,  the  other  in 
the  State  tribunals.  Wrongful  actions  or  omissions,  whose  harm- 
ful consequences  to  the  sovereignty  of  the  State  or  to  its  citizens 
cannot  be  separated  from  those  inflicted  on  the  United  States 
and  on  its  people  at  large,  may  also  be  forbidden  by  the  State, 
and  its  penalties  may  be  enforced  against  offenders  until  the 
Federal  government  has  taken  such  offences  under  its  exclusive 
jurisdiction  by  making  them  crimes  against  the  laws  of  the 
United  States.  Subject  to  the  foregoing  distinctions  the  States 
and  the  United  States  distribute  criminal  jurisdiction  among 
their  respective  courts  according  to  the  enormity  of  the  offences 
and  the  severity  of  their  punishment ;  reserving  the  most  heinous 
crimes  for  the  cognizance  of  the  higher  courts,  and  entrusting 
those  of  inferior  degree  to  the  judgment  of  the  lower  tribunals. 
The  local  statutes  wliich  control  this  distribution  are  subject  to 
frequent  change. 

Rem.  Although  the  United  States,  as  a  nation,  has  no  im- 
written  substantive  criminal  law,  since  all  its  acts  defining  and 
prohibiting  crimes  necessarily  take  the  form  of  statutes,  treaties, 
or  constitutional  provisions,  yet  its  courts  make  constant  use  of  the 
unwritten  criminal  law  in  interpreting  the  express  enactments  of 
the  written,  and  in  their  procedure  follow  in  many  details  the 
rules  of  the  unwritten  adjective  criminal  law. 

Read:  Hawley,  Criminal  Law,  pp.  46-55; 

Clark  and  Marshall,  Criminal  Law,  §§  512-514; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §§  162-164,  169,  170,  171; 

Clark,  Criminal  Procedure,  §§  1,  2; 

Hochheimer,  Crimes  and  Criminal  Procedure,  §§  54-56. 

§  582.     Of  the  Jurisdiction  of  Criminal  Courts  over  the  Person  of 
the  Accused. 

Over  certain  persons  witliin  their  borders]  neither  the  States 
nor  the  United  States  possess  criminal  jurisdiction.  These  are 
visiting  friendly  sovereigns  and  their  attendants ;  foreign  minis- 
ters and  diplomatic  agents  with  their  servants;  friendly  armies 
passing  through  their  territory ;  and  invading  enemies  committing 
belligerent  acts.     These  are  amenable  only  to  their  own  sover- 


§  582  CRIMlxNAL    PROCEDURE  653 

eigns  for  their  unlawful  conduct,  upon  whom,  under  the  law  of 
nations,  the  aggrieved  nation  may  call  for  redress.  All  other 
persons,  native  or  foreign,  and  resident  or  transient,  are  equally 
bound  to  observe  the  penal  laws,  and  for  their  offences  are  all 
alike  liable  to  punishm:'nt. 

Rem.  No  court,  however,  acquires  jurisdiction  over  the  per- 
son of  an  offender  mer.  ly  through  his  commission  of  a  crime. 
Authority  over  Vvz  perso..  docs  not  exist  until  he  is  within  the 
physical  custody  of  the  ceUxt,  and  when  this  authority  is  once 
acquired  it  docs  not  cease  by  hi^  escape,  or  his  acquittal,  or  any 
other  event  until  he  is  formally  tlischivrged.  I'he  means  by  which 
this  authority  is  obtained  and  perpctu..ted  are  his  arrest,  commit- 
ment, and  bail,  —  the  three  step."^  which,  taken  together,  consti- 
tute the  process  in  criminal  cases. 

Read:  Clark,  Criminal  Law  (Tiffany  Ed.),  §§  172,  173; 
Wharton,  Criminal  Pleading,  §  59; 
Hawley,  on  Arrest,  pp.  56-58; 
Hochheimer,  Crimes  and  Criminal  Procedure,  §  52. 


654  ELEMENTARY  LAW  §  583 


CHAPTER   II 

OF    THE    PEOCESS    IN    CKIMINAL    CASES 

§  583.     Of  Arrest  by  Warrant. 

An  arrest  is  the  apprehension  or  taking  into  custody  of  an 
alleged  offender,  in  order  that  he  may  be  brought  into  the  proper 
court  to  answer  for  the  crime.  It  may  be  made  by  warrant,  or 
without  a  warrant.  A  warrant  is  a  written  mandate,  issued  by  a 
magistrate  and  directed  to  an  officer  or  other  designated  person, 
commanding  him  to  apprehend  the  alleged  offender  and  bring 
him  into  the  appropriate  court.  It  should  describe  the  person 
to  be  arrested ;  the  offence  with  which  he  is  charged ;  the  tribunal 
before  which  he  is  to  be  brought ;  and  the  officer  by  whom  it  is 
to  be  served ;  and  should  be  dated  and  signed  by  the  magistrate 
who  issues  it.  Armed  with  this  warrant  the  officer  to  whom  it 
is  directed  may  arrest  the  alleged  offender  wherever  he  can  be 
found  within  the  territorial  jurisdiction  of  the  magistrate,  at  any 
time  of  day  or  night,  and  in  many  cases  may  break  open  the 
doors  of  any  house  when  necessary  to  accomplish  the  arrest. 
If  he  is  unable  to  make  the  arrest  without  assistance,  he  may  call 
upon  any  citizen  for  aid,  or  in  extreme  emergencies  may  raise  the 
•posse  comitatus,  and  any  person  refusing  to  obey  will  be  held 
guilty  of  a  misdemeanor.  All  those  who  at  the  summons  of  the 
officer  engage  in  the  pursuit  are  clothed,  for  the  time  being,  with 
his  powers. 

Rem.  Before  a  warrant  is  granted  by  a  magistrate  testimony 
should  be  presented  to  him,  under  oath,  sufficient  to  induce  in  his 
mind  a  reasonable  belief  that  a  crime  has  been  committed,  and 
that  the  accused  is  the  offender.  The  custom  which  sometimes 
obtains  of  signing  warrants  in  blank,  leaving  the  allegations  w^hich 
connect  them  with  particular  offences  and  offenders  to  be  filled  in 
by  executive  officers  or  private  persons  at  their  own  discretion,  is 
a  gross  neglect  of  duty  on  the  part  of  the  magistrate,  and  an  abuse 
of  authority  on  the  part  of  the  person  serving  the  warrant  on  the 
accused. 


§  584  CRIMINAL   PROCEDURE  655 

Read:  4  Bl.  Com.,  pp.  289-292; 

Archbold,  Criminal  Procedure,  pp.  102-114; 
Wharton,  Criminal  Pleading,  §§  1-7,  10,  11,  18-27; 
Hawley  on  Arrest,  pp.  19-36; 
Rapalje,  Criminal  Procedure,  §§  7-9; 
Clark,  Criminal  Procedure,  §§  4—9,  13,  15; 
1  Bishop,  Criminal  Procedure,  §§  187-212; 
Hochheimer,  Crimes  and  Criminal  Procedure,  §§  65,  66; 
Vickers,  Police  Officers  and  Coroners,  pp.  1-164; 
Smith,  Coroners  and  Constables,  pp.  1-20. 


§  684.     Of  Arrest  without  Warrant:  Hue  and  Cry. 

In  cases  where  the  delay  necessary  to  obtain  a  warrant  might 
defeat  the  ends  of  justice  an  arrest  without  a  warrant  is  permitted. 
Thus  an  officer  may  arrest  without  a  warrant  in  three  cases:  (1) 
When  a  felony,  or  any  crime  in  violation  of  the  public  peace,  is 
actually  being  committed  in  his  presence  by  the  offender  at  the 
time  of  the  arrest ;  (2)  When  he  has  probable  cause  to  believe  that 
a  felony  has  been  committed,  and  that  the  person  arrested  is  the 
felon ;  (3)  When  a  felon  once  arrested  has  escaped  from  cus- 
tody, and  an  opportunity  to  recapture  him  suddenly  arises.  A 
private  person  may  arrest  without  a  warrant  in  two  cases:  (1) 
When  a  felony,  or  any  crime  in  violation  of  the  public  peace,  is, 
at  the  time  of  the  arrest,  actually  being  committed  in  his  presence ; 
(2)  When  a  felony  has  actually  been  committed,  and  he  has 
probable  cause  to  believe  that  the  person  arrested  is  the  felon. 
In  all  instances  of  arrest  without  warrant  the  prisoner  must  be 
at  once  carried  before  a  proper  magistrate  in  order  that  he  may 
be  committed  or  enlarged  on  bail.  The  right  of  an  officer,  or 
even  of  a  private  person,  to  arrest  without  a  warrant  is  frequently 
extended  by  local  laws  to  cases  of  emergency  other  than  those 
above  enumerated. 

Rem.  One  form  of  arrest  without  warrant  is  an  arrest  on  hue 
and  cry.  A  hue  and  cry  is  a  general  alarm  raised  by  a  magistrate 
or  other  officer,  or  in  extreme  cases  by  a  private  person,  for  the 
pursuit  and  capture  of  a  felon,  or  of  some  one  who  has  committed 
a  dangerous  assault.  All  persons  to  whom  the  summons  comes 
may  join  in  the  attempt  to  arrest  the  accused,  and  each  of  them 
may  resort  to  any  method  to  effect  the  arrest  which  an  officer, 
acting  under  a  warrant,  would  liiive  the  right  to  employ.  Where 
a  warrant  acconijianies  the  hue  and  cry  the  pursuit  may  be 
carried  from  county  to  county  until  the  culprit  is  taken,  or  escapes 


656  ELEMENTARY    LAW  §  585 

beyond  the  limits  of  the  State.  When  the  fugitive  is  once  arrested 
the  functions  of  the  hue  and  cry  are  exhausted,  and  unless  he 
eludes  his  captors  and  a  fresh  pursuit  becomes  necessary  they  have 
no  further  powers  except  to  return  him  to  a  magistrate  for  com- 
mitment and  bail. 

Read:  4  Bl.  Com.,  pp.  292-294; 

Archbold,  Criminal  Procedure,  pp.  80-102; 
Wharton,  Criminal  Pleading,  §§  8-9,  12-17; 
Hawley  on  Arrest,  pp.  36-47,  58,  59; 
Rapalje,  Criminal  Procedure,  §§  11-14; 
Clark,  Criminal  Procedure,  §§  10-12,  14; 
Hochheimer,  Crimes  and  Criminal  Procedure,  §  67. 


§  586.     Of  the  Act  of  Arrest. 

Actual  physical  prehensimi  of  the  body  of  the  accused  is  neces- 
sary to  constitute  an  arrest  in  all  cases  where  he  does  not  know- 
ingly and  voluntarily  submit  himself  to  custody.  Any  act  of 
capture,  however,  such  as  a  touch  with  the  hand  or  confinement 
in  a  room,  is  a  sufficient  prehension  if  the  accused  knows  at  the 
time  that  the  act  is  intended  as  a  lawful  arrest;  and  though  he 
should  immediately  free  himself,  yet  the  arrest  is  not  thereby 
vacated,  and  he  will  be  guilty  of  an  escape.  It  is  the  duty  of 
the  person  attempting  to  make  an  arrest,  to  disclose  his  official 
character  and  purpose  to  the  accused  unless  his  appearance  or 
other  circumstances  clearly  reveal  it,  so  that  the  accused  may 
understand  that  the  proceeding  is,  or  claims  to  be,  the  service 
upon  him  of  lawful  process.  It  is  then  the  duty  of  the  accused 
to  submit  to  the  arrest;  after  which  he  may  demand  from  the 
officer  a  statement  of  the  crime  with  which  he  is  charged,  and  of 
the  tribunal  to  which  he  is  about  to  be  carried.  This  informa- 
tion it  is  the  duty  of  the  officer  to  give,  either  by  showing  his 
warrant  if  he  has  one,  or  in  some  other  manner  sufficient  to 
remove  any  reasonable  apprehension  of  the  accused  that  he  is 
about  to  be  unlawfully  restrained.  In  effecting  the  arrest  the 
officer  must  use  no  unnecessary  violence,  but  if  he  meets  with 
resistance  he  may  employ  any  force  short  of  killing  to  secure  his 
prisoner  when  he  is  charged  with  misdemeanor,  while  if  the 
charge  be  felony  he  may  even  take  his  life. 

Rem.  An  arrest  manifestly  unlawful  requires  no  submission 
on  the  part  of  the  accused,  but  if  lie  olTcrs  any  opposition  to  it  he 


§  586  CRIMINAL    PROCEDURE  657 

takes  the  risk  of  misjudging  its  legality,  and  should  he  kill  the 
officer  and  it  be  afterwards  decided  that  the  arrest  was  lawful,  he 
will  be  held  guilty  of  murder.  An  officer  who  kills  in  the  endeavor 
to  make  an  unlawful  arrest,  or  who  kills  unnecessarily  in  effecting 
a  lawful  arrest,  commits  murder  or  manslaughter  according  to  the 
malice  involved  in  the  homicide.  When  a  reward  has  been  offered 
for  the  capture  of  a  criminal,  or  any  other  service,  it  is  payable  to 
those  who,  with  knowledge  of  the  offer,  render  the  service  within 
reasonable  time  after  the  offer  is  made  and  before  it  has  been 
revoked ;  unless  the  service  were  embraced  in  their  official  duties, 
—  in  which  case  many  authorities  maintain  that  they  have  no 
legal  right  to  a  reward. 

Read:  3  Bl.  Com.,  pp.  288-290; 
4  Bl.  Com.,  pp.294,  295; 
Desty,  Criminal  Law,  §§  63-65  c; 
Archbold,  Criminal  Procedure,  pp.  126-131; 
Wharton,  Criminal  Pleading,  §  3; 
Hawley  on  Arrest,  pp.  13-19,  53-56; 
Rapalje,  Criminal  Procedure,  §  10; 
Clark,  Criminal  Procedure,  §§  16-19,  30-33; 
1  Bishop,  Criminal  Procedure,  §§  155-162,  240-246; 
Hochheimer,  Crimes  and  Criminal  Procedure,  §§  64,  69,  70. 


§  686.     Of  Arrest  on  Requisition:  Extradition. 

No  ordinary  criminal  process  is  valid  outside  the  territorial 
jurisdiction  of  the  State  under  whose  authority  it  was  issued. 
Hence,  a  criminal  fleeing  beyond  the  boundaries  of  that  State 
would  be  safe  from  arrest  were  there  no  extraordinary  process  by 
which  he  could  be  reached.  When  such  a  fugitive  is  still  within 
the  limits  of  the  United  States  he  may,  however,  be  captured  and 
returned  to  his  own  State  by  a  proceeding  called  a  requisition. 
This  issues  under  that  provision  of  the  Federal  Constitution 
which  prescribes  that  "a  person  charged  in  any  State  with 
treason,  felony,  or  other  crime,  who  shall  flee  from  justice  and 
be  found  in  another  State,  shall,  on  demand  of  the  executive 
authority  of  the  State  from  which  he  fled,  be  delivered  up  to  be 
removed  to  the  State  having  jurisdiction  of  the  crime."  The 
customary  proeedure  under  this  provision  commences  with  the 
finchng  of  an  indictment,  complaint,  or  information  in  the  court 
having  jurisdiction  of  the  crime,  which  must  in  all  respects  be 
as  complete  and  formal  as  if  the  accused  were  already  in  court 
to  be  jnit  upon  his  trial.     This  (locunicnt  is  tht-n  presented  to  the 

12 


658  ELEMENTARY   LAW  §  586 

governor  of  the  same  State,  who  thereupon  forwards  it,  or  a  cer- 
tified copy  of  it,  to  the  governor  of  the  State  where  the  accused 
has  taken  refuge,  together  with  a  demand  for  his  arrest  and  re- 
turn. If  the  governor  on  whom  the  demand  is  made  is  satisfied 
that  the  document  is  in  due  form,  and  that  the  accused  is  in 
his  jurisdiction  and  is  a  fugitive  from  justice,  it  is  his  duty  to 
cause  him  to  be  arrested  upon  process  lawful  in  that  State,  and 
to  be  dehvered  to  the  officer  representing  the  State  from  which 
he  fled.  There  is  no  method  of  compelHng  the  governor  of  the 
State  of  refuge  to  perform  tliis  duty,  and  if  he  dechnes  to  do  so, 
either  arbitrarily  or  upon  pretended  legal  grounds,  the  fugitive 
may  there  enjoy,  at  least  during  that  gubernatorial  term  of 
office,  a  safe  asylum.  If  the  accused  is  arrested  and  returned 
to  his  own  State  he  becomes  subject  to  the  jurisdiction  of  its 
courts  for  all  purposes,  and  may  be  prosecuted  and  punished 
for  other  crimes  as  well  as  that  for  which  he  was  arrested  under 
the  requisition. 

Rem.  A  requisition  is  not  available  where  the  accused  has  fled 
beyond  the  territorial  jurisdiction  of  the  United  States  into  a 
foreign  country,  but  in  many  cases  he  may  there  be  arrested  and 
returned  through  the  process  called  an  extradition.  The  extra- 
dition of  criminals  does  not  rest  on  any  basis  of  acknowledged 
right,  but  is  conceded  and  regulated  by  treaties  between  the 
United  States  and  various  foreign  powers.  This  proceeding  is 
usually  limited  to  the  more  atrocious  crimes,  but  does  not  extend 
to  mere  political  offences,  and  is  conducted  through  the  sover- 
eigns of  the  treaty  States  and  their  diplomatic  agents.  Statutory 
tribunals  are  generally  created  to  act  at  the  instance  of  the  chief 
executive  authority  of  the  country  of  refuge,  when  his  aid  is  in- 
voked by  the  foreign  power,  in  inquiring  into  the  sufficiency  of  the 
conditions  precedent  to  the  surrender  of  the  accused  according  to 
the  tests  established  by  the  treaty.  If  the  conditions  are  found  to 
be  sufficient  the  accused  is  delivered  up  to  the  control  of  the  chief 
executive  authority,  and  by  him  to  the  representative  of  the  nation 
which  has  demanded  the  arrest.  An  extradited  criminal  can  be 
tried  only  for  the  crime  in  reference  to  which  he  was  surrendered., 
unless  the  stipulations  of  the  treaty  otherwise  provide. 

Read:  Archbold,  Criminal  Procedure,  pp.  114-126; 
May,  Law  of  Crimes,  §§  84-86; 
Wharton,  Criminal  Pleading,  §§  28-58; 
Clark,  Criminal  Procedure,  §§  22-29; 
Hawley,  Interstate  Extradition,  Introd.  pp.  5-111; 


§  587  CRIMINAL  PROCEDURE  659 

Spear  on  Extradition,  pp.  13,  15-20,  39-41,  42,  43,  45,  46,  76-84, 
221-270,  283-313,  339-460,  496-500,  525-555; 

Kenney,  Criminal  Law,  pp.  382-387; 

1  Bishop,  Criminal  Procedure,  §§  219-224  5; 

Hochheimer,  Crimes  and  Criminal  Procedure,  §§  212-220; 

Moore  on  Extradition,  §§  1,  2,  5,  16,  42,  43,  44,  89,  94,  103,  119, 
171-175,  205,  219,  226,  235,  243, 256-258,  279-287,  296,  299-305, 
337-340,  350-353,  359,  360,  394-396,  516,  521,  522,  529-531,  542, 
544-546,  562,  602,  605,  607-612,  616,  618,  622-627,  642-644. 


§  687.     Of  the  Return  of  Criminal  Process:  Commitment. 

It  is  the  duty  of  the  officer  making  the  arrest  to  return  the  war- 
rant with  the  prisoner  as  speedily  as  possible  to  the  magistrate 
who  issued  the  warrant,  or  to  some  other  tribunal  having  juris- 
diction over  the  proceedings.  If  compelled  by  any  reason  to 
delay,  he  must  keep  the  prisoner  securely,  by  lodging  him  in 
jail  or  otherwise  according  to  the  circumstances.  When  the 
prisoner  is  brought  before  the  magistrate  the  case  either  at  once 
proceeds  to  trial,  or  to  a  preliminary  hearing,  or  is  adjourned  to 
a  future  day.  Unless  at  once  finally  decided  the  prisoner  is  then 
committed  to  jail  for  safe  keeping,  or  enlarged  on  bail.  The 
process  by  which  the  prisoner  is  committed  to  jail  is  a  written 
mandate,  called  a  mittimus,  issued  by  the  magistrate  or  court 
before  whom  the  alleged  oiTender  is  presented  after  his  arrest. 
It  is  directed  both  to  some  proper  officer  and  to  the  keeper  of  a 
lawful  place  of  confinement,  commanding  the  officer  to  convey 
and  deliver  to  the  keeper  the  body  of  the  accused,  and  ordering 
the  keeper  to  receive  and  safely  detain  him  during  the  time 
specified  therein  or  until  he  is  released  by  due  course  of  law. 
It  must  describe  the  accased  by  his  full  name,  or  the  name  he 
gives  as  his;  must  set  out  with  convenient  certainty  the  crime 
with  which  he  is  charged ;  and  must  be  dated  and  signed  by  the 
magistrate  who  issues  it.  In  pursuance  of  this  mandate  the 
accused  person,  if  not  duly  bailed,  is  taken  to  the  designated 
place  of  imprisonment,  and  delivered  with  the  mittimus  to  the 
jailer,  and  there  confined  accortling  to  its  precept. 

Rem.  Where  the  crime  charged  is  one  over  which  the  magis- 
trate, before  whom  the  pri.soner  is  brought,  has  final  jurisdiction 
he  may  immediately  proceed  to  trial,  and  convict  or  accjuit  the 
accused.     If  the  offence  is   not   within   the  final  juri.sdiction  of 


660  ELEMENTARY   LAW  §  588 

the  magistrate,  and  if  under  the  local  law  he  must  now  conduct 
a  preliminary  examination  of  the  case  in  order  to  determine 
whether  the  accused  should  be  delivered  to  a  higher  court  for 
trial,  this  examination  may  take  place  at  once,  or  be  adjourned 
to  some  more  convenient  occasion.  If  the  trial  or  examination 
does  proceed,  a  formal  complaint  under  oath,  having  the  general 
attributes  of  an  indictment,  must  be  filed  with  the  court.  To 
this  complaint  the  accused  must  plead,  and  upon  it  the  court, 
having  heard  the  witnesses  and  arguments,  will  pass  judgment ; 
acquitting  or  convicting  the  accused  if  the  crime  is  in  its  final 
jurisdiction;  holding  him  for  future  trial  in  the  higher  court,  or 
discharging  him  for  want  of  probable  cause,  if  the  jurisdiction 
over  the  offence  resides  in  the  superior  tribunal.  In  any  disposi- 
tion of  the  case,  except  by  acquittal  or  discharge,  commitment 
or  bail  becomes  immediately  necessary. 

Read:  Archbold,  Criminal  Procedure,  pp.  132-165; 
Wharton,  Criminal  Pleading,  §§  70-73; 
Hawley  on  Arrest,  pp.  50-53 ; 
Rapalje,  Criminal  Procedure,  §§  15-20; 
Clark,  Criminal  Procedure,  §§  20,  35; 

1  Bishop,  Criminal  Procedure,  §§  164-186,  213-218,  225-239  a; 
Hochheimer,  Crimes  and  Criminal  Procedure,  §§  72-77,  87. 


§  688.     Of  BaU. 

With  the  exception  of  capital  cases  where  the  proof  of  guilt  is 
evident  or  the  presumption  is  great,  and  of  other  cases  specified 
by  local  statutes,  all  offences  are  now  in  this  country  regarded 
as  bailable;  and  the  person  charged  ^\^th  them  is  entitled  to  his 
liberty  upon  giving  sufficient  securit}^  for  his  appearance  in  court 
whenever  necessary,  to  answer  to  the  charge.  This  security 
sometimes  takes  the  form  of  money  deposited  with  the  court; 
sometimes  of  a  bond,  signed  and  sealed  by  the  accused  and  one 
or  more  sureties,  and  stipulating  for  the  payment  of  a  certain 
sum  if  he  should  fail  to  appear  as  directed;  sometimes  of  a 
recognizance,  which  is  an  oral  pledge  of  the  same  character  given 
by  the  prisoner  and  his  sureties  to  the  court  and  entered  on  its 
records,  to  be  reduced  to  writing  whenever  it  becomes  necessary. 
The  amount  of  the  security  is  determined  by  the  court.  It  must 
not  be  so  excessive  as  to  be  beyond  the  reach  of  ordinary  citizens, 
and  yet  must  be  sufficient  to  secure,  as  far  as  possible,  the  ap- 
pearance of  the  accused;  and  hence,  in  fixing  its  amount,  the 
nature   of  the   crime,   its   probable  penalty,   the  incriminating 


§  588  CRIMINAL    PROCEDURE  661 

proof,  the  character  of  the  accused,  and  his  pecuniary  circum- 
stances, are  all  to  be  considered.  The  condition  which  the 
security  binds  him  to  fulfil  is  to  appear  in  court  at  the  time 
named  therein,  and  abide  the  order  which  may  then  be  made 
in  reference  to  the  case.  If  the  time  named  be  a  single  day  he 
complies  with  the  condition  by  being  present  on  that  day.  If 
the  stipulation  obligates  liim  to  remain  in  court,  until  discharged 
by  due  course  of  law,  he  must  be  in  attendance,  or  where  his 
presence  can  at  any  time  be  given,  as  long  as  the  proceedings 
are  pending  in  the  court.  Any  failure  in  tliis  duty  renders  the 
security  liable  to  be  jorjeited,  by  calling  upon  the  accused  in 
open  court  to  appear  at  once  and  demanding  his  production  by 
his  sureties ;  after  which,  if  he  is  not  produced,  both  he  and  they 
are  liable  to  suit  for  the  recovery  of  the  stipulated  sum.  The 
forfeiture  and  collection  of  the  security  by  the  State  does  not 
condone  the  offence  of  the  accused,  nor  prevent  his  subsequent 
arrest,  prosecution,  and  punishment.  A  person  entitled  to 
bail,  but  not  permitted  by  the  court  to  offer  it  and  obtain 
his  release,  may  apply  to  another  court  or  judge  for  a  writ  of 
habeas  corpus. 

Rem.  During  the  hfe  of  the  security  the  accused  is  in  the 
custody  of  his  sureties  wherever  he  may  personally  be  located, 
and  they  may  at  any  time  arrest  him  and  surrender  him  to  the 
court;  or  they  may  obtain  from  the  court  a  warrant,  called  a 
hail-piece,  on  which  he  may  be  captured  by  them  or  their  ac- 
credited agent  at  any  place  where  they  can  find  him,  and  be 
returned  with  the  bail-piece  to  the  court.  By  such  surrender  or 
recapture  of  the  accused,  and  his  return  to  the  court,  the  sureties 
are  discharged  from  further  liability,  as  well  as  by  any  change 
made  without  their  consent  in  the  obligation  of  the  security,  or 
by  any  action  of  the  prosecutor  which  is  prejudicial  to  their 
rights,  or  by  the  death  of  the  accused  himself. 

Read:  4  Bl.  Com.,  pp.  296-300; 

Archbold,  Criminal  Procedure,  pp.  165-206; 

Wharton,  Criminal  Pleading,  §§  62,  74-81.  978-1011; 

Rapalje,  Criminal  Procedure.  §§  21-62,  4.59-477; 

Clark,  Criminal  Procedure,  §§  36-4'),  224-228; 

1  Bishop,  Criminal  Procedure,  §J  247-264; 

Hochhcimer,  Crimes  and  Criminal  Procedure,  §§  78-82,  224-226. 


662  ELEMENTARY   LAW  §  589 

§  589.     Of  the  Treatment  of  the  Accused  while  in  Custody. 

The  sole  legitimate  purpose  to  be  accomplished  by  keeping  the 
accused  in  custody  is  that  he  may  be  present  in  the  court  to 
answer  to  the  charge,  and  therefore  he  cannot  lawfully  be  sub- 
jected to  any  imposition  or  restraint  which  is  not  necessary  to 
that  end.  While  his  person  may  be  searched  at  his  arrest,  and 
instruments  or  evidences  of  his  crime,  or  weapons  with  which 
he  might  perpetrate  further  mischief,  may  be  taken  from  him, 
he  cannot  be  deprived  of  his  money  or  other  innocent  property 
except  to  place  it  fcr  him  in  safe  keeping  until  his  release.  He 
is  entitled  to  consult  with  friends  and  counsel  without  delay  in 
order  to  prepare  his  defence  or  to  secure  his  release  on  bail.  He 
cannot  be  compelled  to  submit  to  any  examination,  or  to  make 
any  disclosures  against  himself;  but  if  lie  desires  to  do  so  it 
must  be  permitted  after  a  proper  caution  to  him  that  the  state- 
ment may  be  used  against  him  at  the  trial.  He  must  be  physically 
cared  for  as  his  needs  require,  and  otherwise  treated  as  a  citizen 
whose  innocence  is  presumed  until  his  guilt  is  proved. 

Rem.  The  despotic  practices  of  the  Old  World,  with  their 
various  forms  of  inquisitorial  torture,  are  wholly  foreign  to  the 
spirit  of  our  institutions,  as  they  also  were  to  the  Christian  civili- 
zation of  the  nations  by  whom  they  were  and  perhaps  still  are,  in 
some  cases,  employed.  The  introduction  of  these  practices  into 
our  modern  American  police  and  detective  systems  under  the 
names  of  the  "sweating  process,"  the  "administration  of  the  third 
degree,"  etc.,  so  patiently  submitted  to  by  our  people,  and  so 
strangely  tolerated  by  some  of  our  courts,  finds  no  justifica- 
tion in  any  doctrine  of  our  law. 

Read:  Wharton,  Criminal  Pleading,  §§  60,  61; 
Hawley  on  Arrest,  pp.  47-49 ; 
Clark,  Criminal  Procedure,  §§  34,  35,  52,  53; 
Underhill,  Criminal  E\'idence,  §  54; 
1  Bishop,  Criminal  Procedure,  §  163; 
Hochheimer,  Crimes  and  Criminal  Procedure,  §  71; 
Rice,  Criminal  Evidence,  §§  429-433. 


§  590  CRIMINAL    PROCEDURE  663 


CHAPTER   III 

OF    THE    PLEADINGS    IN    CRIMINAL    CASES 

§  590.     Of  the  Formal  Accusation  against  the  Alleged  Offender. 

The  prosecution  of  a  crime  commences  with  the  presentation 
to  the  court,  having  jurisdiction  over  the  offence  and  the  offender, 
of  a  formal  ivritien  accusation  charging  him  with  the  crime. 
Whatever  takes  place  prior  to  this  step  in  the  proceedings  is 
preliminary  to  the  prosecution,  and  not  one  of  its  essential  parts. 
This  accusation  is  sometimes  filed  before  the  warrant  issues  or 
the  arrest  is  made;  sometimes  after  the  arrest  and  before  the 
commitment  or  release  on  bail;  sometimes  after  the  release  on 
bail  and  the  transfer  of  the  proceedings  into  a  higher  court. 
Thus  when  the  magistrate  who  issues  the  warrant  can  take  final 
jurisdiction  over  the  offence,  the  accusation  may  be  presented  to 
him  before  he  signs  the  warrant  or  after  the  arrest  and  return. 
When  the  magistrate  to  whom  the  warrant  and  the  prisoner  are 
returned  cannot  or  does  not  assume  final  jurisdiction,  but  holds 
the  accused  for  trial  before  a  superior  tribunal,  it  is  in  the  latter 
court  that  the  formal  accusation  must  be  made. 

Rem.  A  formal  accusation  before  a  police  court  or  a  justice  is 
commonly  called  a  "complaint,"  and  is  prepared  by  the  magis- 
trate, or  by  some  legally  authorized  person,  who  confirms  it  by 
his  individual  or  official  oath.  In  its  general  features  this  com- 
plaint is  governed  by  the  same  rules  as  an  indictment.  A  similar 
complaint  is  frequently  presented  when  the  magistrate  has  no 
final  jurisdiction,  in  order  to  serve  as  a  guide  in  the  preliminary 
proceedings,  although  it  will  be  superseded  by  the  true  formal 
accusation  in  the  higher  court. 

Read:  Heard,  Criminal  Pleading,  pp.  .32^0; 
Clark,  Criminal  Procedure,  §§  50,  51; 
1  Bishop,  Criminal  Procedure,  §§  415-420,  716-727. 


664  ELEMENTARY  LAW  §§  591,  592 

§  591.     Of  the  Formal  Accusation:    Indictment;    Presentment; 
Information. 

A  formal  accusation  in  the  higher  courts  may  be  made  either 
by  indictment,  presentment,  or  information.  An  indictment 
is  a  written  accusation  presented  by  a  grand-jury,  under  oath 
and  upon  the  suggestion  of  the  pubUc  prosecutor,  to  a  court 
having  jurisdiction  of  the  offence  charged  therein.  A  present- 
ment is  a  written  accusation  presented  by  a  grand-jury,  under 
oath  and  of  their  own  motion,  to  a  court  having  jurisdiction  of  the 
offences  charged  therein,  in  pursuance  of  their  official  duty  to 
inquire  into  and  bring  to  the  attention  of  the  court  any  crimes 
which  may  come  under  their  notice.  Upon  receiving  this  pre- 
sentment, if  it  discloses  a  wrong  capable  of  being  prosecuted, 
the  court  directs  an  indictment  to  be  framed,  and  a  warrant 
to  issue  for  the  alleged  offenders.  An  information  is  a  written 
accusation,  presented  under  oath  by  a  proper  public  prosecutor 
to  a  court  having  jurisdiction  of  the  offences  charged  therein. 

Rem.  As  between  an  indictment  and  an  information  the  local 
law  determines  which  shall  be  employed.  In  prosecutions  in  the 
Federal  Courts  the  Constitution  of  the  United  States  requires 
that  all  accusations  for  capital  or  infamous  crimes  shall  be  made 
by  a  grand-jury  by  presentment  or  indictment ;  leaving  other 
offences  to  be  pursued  by  information.  In  the  individual  States 
the  rule  varies ;  with  a  general  tendency,  however,  to  resort  to  an 
indictment  for  all  serious  crimes  on  account  of  the  advantages 
accruing  both  to  the  government  and  the  accused  from  the  pre- 
liminary investigation  of  the  case  by  a  grand-jury. 

Read:  4  BL  Com.,  pp.  301-312; 

Archbold,  Criminal  Procedure,  pp.  207-210,  322; 

Heard,  Criminal  Pleading,  pp.  27-32; 

Wharton,  Criminal  Pleading,  §§  85-89; 

Rapalje,  Criminal  Procedure,  §§  110-114; 

Clark,  Criminal  Procedure,  §§  46,  49; 

1  Bishop,  Criminal  Procedure,  §§  129  a-153,  712-715; 

Hochheimer,  Crimes  and  Criminal  Procedure,  §§  83-86. 

§  592.     Of  the  Grand-Jury. 

A  grand-jury  is  a  body  of  men,  legally  selected  from  among 
the  people  of  a  county,  to  inquire  what  offences  have  been  com- 
mitted therein.  When  assembled  in  court  they  are  sworn,  and 
instructed  in  their  duty  by  the  judge.     An  indictment  prepared 


§  593  CRIMINAL    PROCEDURE  665 

by  the  public  prosecutor  against  the  alleged  offender  is  then  laid 
before  them,  together  with  the  evidence  in  its  support.  If  twelve 
of  the  grand-jury  agree  that  the  evidence  is  sufficient  to  put  the 
accused  upon  his  trial,  the  foreman  endorses  the  indictment  as 
"a  true  bill,"  and  it  is  returned  into  court  in  order  that  the  offender 
may  be  tried  thereon.  If  twelve  do  not  agree  that  the  evidence 
is  sufficient,  the  indictment  is  endorsed  "not  a  true  bill"  and  re- 
turned into  court;  whereupon  the  accused  is  either  discharged, 
or  held  to  await  action  on  a  new  indictment. 

Rem.  Irregularities  in  summoning  the  grand-jury,  or  disquali- 
fications in  the  grand-jurors  themselves,  or  provable  misconduct 
in  their  operations,  may  be  taken  advantage  of  by  the  accused, 
either  by  challenges  to  the  array  or  to  the  polls  before  they  have 
been  sworn,  or  by  plea  in  abatement  or  by  motion  to  (juash  after 
the  indictment  is  found,  according  to  the  local  practice. 

Read:  4  Bl.  Com.,  pp.  .302-306; 

Archbold,  Criminal  Procedure,  pp.  304-311; 
Wharton,  Criminal  Pleading,  §§  332-381; 
Rapalje,  Criminal  Procedure,  §§  63-79,  86; 
Clark,  Criminal  Procedure,  §§  47,  48; 
Underbill,  Criminal  Evidence,  §§  25-30; 
1  Bishop,  Criminal  Procedure,  §§  695-704,  849-889; 
Abbott,  Criminal  Brief,  pp.  16-20; 
Rice,  Criminal  Evidence,  §  151. 


§  693.     Of  the  Indictment  or  Information :  its  General  Requisites. 

Except  that  an  information  is  presented  by  the  public  prosecu- 
tor, and  an  indictment  by  a  grand-jury,  they  are  substantially 
the  same  in  character,  form,  and  requirements.  Each  must  con- 
tain a  statement  of  all  the  facts  and  circumstances  necessary  to 
constitute  the  crime,  set  forth  with  such  particularity  and  cer- 
tainty that  the  accused  may  know  the  nature  of  the  offence  with 
which  he  is  charged  and  what  he  has  to  answer;  that  the  petit- 
jury  may  be  warranted  in  their  conclu.sion  of  guilty  or  not  guilty 
upon  the  premises  delivered  to  them ;  that  the  c-ourt  may  see 
upon  the  record  a  definite  i.ssue  upon  which  judgment  may  be 
rendered ;  and  that  the  record  of  conviction  or  acquittal  may  be 
pleaded  in  bar  to  a  subsequent  prosecution  for  the  same  offence. 
The  rules  which  have  been  established  for  the  purpose  of  securing 
this  particularity  and   certainty  relate  principally  to  the  allega- 


666  ELEMENTARY   LAW  §  593 

tions  concerning  (1)  The  person  of  the  accused;  (2)  The  place 
where  and  the  time  when  the  criminal  act  was  committed;  (3) 
The  person  or  property  injured;  (4)  The  actions  or  omissions 
which  constituted  the  crime  itself. 

Rem.  The  formal  requisites  of  an  indictment  are  similar  to 
those  which  govern  declarations  in  civil  actions  at  common  law. 
The  indictment  or  information  may  contain  one  or  more  counts. 
Each  count  must  of  itself  be  a  full  and  complete  charge  of  crime, 
and  must  be  sufficient  to  sustain  a  verdict ;  for  no  number  of  de- 
fective counts  can  make  a  good  indictment.  Matter  stated  in  one 
count  may,  however,  by  reference  thereto  be  made  part  of  a  subse- 
quent count  without  restating  it  at  length.  Different  counts  for 
different  offences  by  the  same  offender  may  be  joined  in  one  in- 
dictment in  cases  of  misdemeanor;  and  where  one  of  the  offences 
is  embraced  in  the  other,  or  where  both  offences  are  parts  of 
the  same  transaction,  such  joinder  is  allowable  in  felony.  Dif- 
ferent offences  of  the  same  nature  when  committed  by  different 
persons,  and  different  offenders  when  alleged  to  have  been  joint 
actors  in  the  commission  of  the  same  crime,  may  be  sometimes 
similarly  combined  in  the  same  accusation.  But  two  distinct 
offences,  whether  by  the  same  or  different  offenders,  cannot  be 
charged  in  the  same  count ;  and  if  this  should  be  done  the  count 
will  be  bad  for  duplicity.  An  apparent  exception  to  this  rule 
exists  where  successive  acts  of  the  same  nature  by  the  same 
person  are  laid  in  the  same  count  with  a  repetendo;  or  a  long 
enduring  and  constantly  injurious  offence  is  described  with  a 
continuando ;  in  which  two  cases  the  crimes  are  one  or  several 
according  to  the  evidence  adduced.  When  material  allegations 
in  the  same  count  contradict  one  another,  the  count  is  bad  for 
repugnancy.  If  the  allegations  are  in  the  disjunctive,  or  in  any 
other  way  fail  to  specify  precisely  what  crime  was  committed,  the 
count  is  bad  for  uncertainty.  Immaterial  allegations  are  sur- 
plusage, and  inconsistencies  therein  do  not  vitiate  the  count. 
When  one  count  in  an  indictment  is  good,  a  general  verdict  of 
guilty  will  be  sustained  as  applicable  to  that  count,  though  all  the 
other  counts  are  defective. 

Read:  Archbold,  Criminal  Procedure,  pp.  234-240,  275-284,  288-304; 
Heard,  Criminal  Pleading,  pp.  41-47,  112-144,  226-259,  325-327; 
Wharton,  Criminal  Pleading,  §§  91-95,  243-256,  279-315; 
Rapalje,  Criminal  Procedure,  §§  80,  85,  100-108; 
Clark,  Criminal  Procedure,  §§  55-57,  99-114,  119-121; 
1  Bishop,  Criminal  Procedure,  §§  318-359,  421-453,  462-492,  647- 

668; 
Hochheimer,  Crimes  and  Criminal  Procedure,  §§  90-94,  96,  105-109 


§  594  CRIMINAL  PROCEDURE  667 

§  594.     Of  the  Indictment  or  Information:    the  Description  of 
the  Accused,  and  of  the  Place  and  Time  of  his  Offence. 

The  accused  must  he  described  by  his  proper  name  if  it  be  known, 
and  this  name  must  be  stated  at  length,  including  his  Christian 
name  and  surname,  and  be  repeated  in  every  distinct  allegation. 
If  he  be  known  by  different  names,  they  should  be  stated  under 
an  alias-  If  his  name  be  not  known  he  should  be  described  by 
some  arbitrary  name,  and  if  he  pleads  in  bar  under  that  name 
it  will  be  taken  as  his  true  name ;  while  if  he  pleads  in  abatement 
for  the  misnomer  he  must  set  forth  in  his  plea  his  true  name, 
which  will  then  be  substituted  for  the  other.  His  place  of  resi- 
dence must  also  be  alleged,  if  known ;  if  not  known,  he  may  be 
described  as  a  transient  person.  Any  mistake  in  these  particulars 
can  be  taken  advantage  of  only  by  a  plea  in  abatement  which 
will  result  in  the  correction  of  the  error.  Since  the  jurisdiction 
of  the  court  depends  in  part  upon  the  locality  of  the  crime,  the 
indictment  must  show  upon  its  face  that  the  criminal  act  occurred 
within  the  territory  over  which  the  court  is  authorized  by  law 
to  exercise  judicial  cognizance.  If  this  should  not  be  shown 
the  indictment  could  be  quashed  for  want  of  jurisdiction,  or  a 
plea  to  the  jurisdiction  could  be  successfully  interposed.  It  would 
also  be  held  invalid  on  a  denmrrer,  or  on  a  motion  in  arrest  of 
judgment,  or  on  a  wi'it  of  error.  'I'he  fact  that  the  offence  was 
in  the  local  jurisdiction  of  the  court  is  made  to  a])pear  by  the 
correspondence  between  the  venue  laid  in  the  indictment  and 
the  subsequent  descrij)ti()n  of  the  place  where  the  crime  was 
committed.  The  venue  is  a  short  statement  at  the  head  of  the 
indictment,  in  one  or  more  words,  naming  the  county  or  other 
political  subdivision  in  and  for  which  the  court  is  held.  In  the 
body  of  tile  indictment  are  set  forth  the  specific  allegations 
which  describe  the  place  of  the  offence  according  to  the  rules 
already  explained  concerning  the  locality  of  crimes.  Some 
particular  day,  month,  and  year  must  also  be  alleged  as  the  date 
of  each  independent  act  involved  in  the  crime  charged,  and  this 
date  must  show  that  the  offence  has  been  committed  witliin  the 
time  allowed  by  the  Statute  of  Limitations  for  the  preferment  of 
the  charge.  Where  the  crime  has  been  creafcil  hy  a  statute  the 
indictment  must  describe  it  as  having  been  perpetrateil  at  a 
date  after  the  statute  was  enacted. 


668  ELEMENTARY  LAW  §  595 

Rem.  In  stating  certain  crimes  a  more  minute  particularity 
must  be  observed  in  describing  times  and  places,  so  as  to  distin- 
guish the  occurrence  from  any  possible  alternative.  Thus  in 
burglary  that  act  must  be  alleged  to  have  been  performed  at  or 
between  such  hours  as  were  within  the  night  season  on  the  day 
designated,  and  the  location  of  the  dwelling  house  must  be 
averred  by  street  and  number,  or  some  other  precise  unmistak- 
able description.  In  murder  also  the  dates  of  the  homicidal  act 
and  of  the  death  must  both  be  stated,  so  that  an  interval  of 
more  than  a  year  and  a  day  between  them  appears  to  have  been . 
impossible. 

Read:  4  Bl.  Com.,  p.  306; 

Archbold,    Criminal    Procedure,    pp.   211-233,    241-265,    784-797, 

1071-1076; 
Heard,  Criminal  Pleading,  pp.  48-92; 

Wharton,  Criminal  Pleading,  §§  90-108,  120-150,  316-329; 
Rapalje,  Criminal  Procedure,  §§  81,  83,  94-96; 
Clark,  Criminal  Procedure,  §§  58,  95-97; 
Underbill,  Criminal  Evidence,  §§  31-37; 
1  Bishop,  Criminal  Procedure,  §§  360-414,  669-689  b; 
Hochheimer,  Crimes  and  Criminal  Procedure,  §§  97,  98; 
McClain,  Criminal  Law,  §§  369-394. 


§  595.     Of  the  Indictment  or  Information :  the  Description  of  the 
Criminal  Act  and  of  the  Person  or  Property  Injured. 

Each  and  every  action  or  omission  necessary  to  constitute  tl>e 
crime  must  be  so  particularly  and  accurately  stated  as  to  fix 
and  define,  beyond  doubt,  the  exact  charge  wliich  the  prosecutor 
makes  against  the  accused.  If  the  crime  is  an  offence  under  the 
unwritten  law  of  the  State,  for  which  a  form  of  indictment  has 
become  established  by  usage  in  the  courts,  that  form  should  be 
followed.  If  the  crime  is  created  or  modified  by  statute  it  is  suf- 
ficient to  describe  it  in  the  words  of  the  statute,  provided  such 
words  contain  a  full  and  complete  enumeration  of  all  the  acts 
necessary  to  constitute  the  oifence;  if  not,  the  words  of  the 
statute  must  be  supplemented  by  additional  words  which  make 
the  description  commensurate  with  the  legal  definition  of  the 
crime.  The  statement  of  the  acts  committed  must  be  positive 
and  assertive;  not  laid  with  a  whereas,  nor  by  way  of  recital, 
nor  argumentatively.  When  the  criminal  act  consists  in  an  injury 
to  property,  the  injured  property  must  be  specifically  described 
by  its  character,  ownershij^,  value,  and  other  attributes  sufficiently 


I 


§  596  CRIMINAL    PROCEDURE  669 

to  distinguish  it  from  every  other  artiele  of  property.  The  person 
injured  by  the  crime  must  be  named  if  his  name  be  known; 
otherwise,  he  must  be  designated  as  a  person  unknown  to  the 
prosecutor. 

Rem.  Where  the  law  has  made  certain  technical  words  nec- 
essary to  the  definition  of  a  crime,  such  words  must  always  be 
employed.  Thus  in  felonies  the  act  must  be  alleged  to  have 
been  performed  " feloniously " ;  in  treason,  ''traitorously" ;  in 
burglary,  "hurglariou.siy" ;  in  robbery,  "against  the  will" ;  in 
piracy,  "piratically" ;  in  murder,  "with  malice  ajorcth ought." 
Also  in  murder  it  must  be  charged  that  the  accused  did  "hill  and 
murder" ;  in  rape,  that  he  did  "ravish  and  carnally  know" ;  in 
mayhem,  that  he  did  "maim" ;  and  in  barratry,  that  he  "is  a 
common  barrator."  For  these  words,  and  for  such  otiiers  as  are 
by  law  made  technically  (lescri{)tive  of  the  whole  crime,  or  of 
any  of  its  essential  parts,  there  arc  no  legal  ef|uivalents,  and  an 
indictment  from  which  they  are  absent  cannot  be  sustained. 

Read:  4  Bl.  Com.,  p.  307; 

Archbold,  Criminal  Procedure,  pp.  26.5-275,  284-288,  1141-1174; 

Heard,  Criminal  Pleading,  pp.  9.V111,  145-22.5; 

Wharton,  Criminal  Pleading,  §§  109-119,  151-241,  257-273; 

Rapalje,  Criminal  Procedure,  §§  82,  84,  87-93,  97-99; 

Clark,  Criminal  Procedure,  §§  59-94,  98; 

1  Bishop,  Criminal  Procedure,  §§  77-112,  493-642,  690-694; 

Hochheimer,  Crimes  and  Criminal  Procedure,  §§  95,  99-104. 


§  696.     Of  the  Arraignment. 

When  the  formal  accusation  is  presented  to  the  court,  if  the 
accused  is  already  in  custody  or  has  been  arrested  and  enlarged 
on  bail,  he  must  appear  in  person  or  by  attorney  and  make 
answer  to  the  charge.  If  he  is  not  yet  arrested  a  bench-warrant 
may  be  issued  by  the  court,  and  the  accused  may  be  brought 
immediately  to  its  bar  without  a  preliminary  proceeding  before 
an  inferior  tribunal.  In  all  criminal  prosecutions  the  alleged 
offender  has  a  right  to  be  present  in  court  during  all  the  essential 
stages  of  the  case,  from  the  preferment  of  the  accusation  to  the 
final  sentence ;  and  if  the  charge  against  him  is  a  felony,  or  any 
offence  for  which  a  corporal  punishment  may  be  inflicted,  he  must 
be  present  whenever  anything  material  to  the  progress  of  the 
case  is  performed.  Hence,  to  indictments  for  such  offences  he 
must  appear  and  plead  in  person:  in  other  cases  he  may  waive 


670  ELEMENTARY   LAW  §  597 

his  right  to  be  present,  and  appear  and  plead  by  attorney.  When 
he  is  to  plead  in  person  he  must  be  formally  arraigned  by  caUing 
him  to  the  bar  of  the  court  during  its  open  session,  where  the 
indictment  will  be  read  to  him  and  he  will  be  required  to  state 
whether  he  is  guilty  or  not  guilty  of  the  offence  charged  therein. 
To  this  arraignment  he  may  answer  by  motions,  by  a  dilatory 
plea,  by  demurrer,  or  by  a  plea  in  bar  according  to  the  nature 
and  scope  of  his  defence. 

Rem.  When  an  accused  person  makes  no  answer  upon  his 
arraignment,  he  is  said  to  .'itand  mute.  This  may  occur  either 
through  his  obstinacy,  or  because  he  is  dumb,  or  is  insane,  or  is 
ignorant  of  the  language  in  which  the  proceedings  are  conducted. 
Anciently  his  silence  was  always  attributed  to  obstinacy,  and,  as 
under  the  then  existing  law  he  could  not  be  tried  except  upon  his 
plea,  the  most  rigorous  and  even  fatal  measures  were  resorted  to 
in  order  to  force  him  to  answer.  Under  the  modern  law,  if  he 
stands  mute  through  obstinacy  or  is  dumb,  the  court  will  order  a 
plea  of  not  guilty  to  be  entered  for  him  and  the  case  will  then  pro- 
ceed. When  he  appears  to  be  insane,  a  jury  will  be  appointed 
to  inquire  into  his  sanity,  and  if  they  find  him  insane  he  will  be 
remanded  for  safe-keeping,  and  the  proceedings  will  be  stayed 
until  he  recovers  or  until  his  case  is  otherwise  determined.  Where 
he  is  ignorant  of  the  language,  an  interpreter  will  be  provided  to 
acquaint  him  with  the  charge,  and  to  inform  the  court  of  his 
reply. 

Read:  4  Bl.  Com.,  pp.  .318-329; 

Archbold,  Criminal  Procedure,  pp.  323-333; 

Wliarton,  Criminal  Pleading,  §§  699-701; 

Rapalje,  Criminal  Procedure,  §§  115,  116; 

Clark,  Criminal  Procedure,  §§  127,  128; 

1  Bishop,  Criminal  Procedure,  §§  728-733  b; 

Abbott,  Criminal  Brief,  pp.  11,  12,  24-30; 

Hochheimer,  Crimes  and  Criminal  Procedure,  §§  112,  113. 

§  597.     Of  Counsel  and  Guardian  for  the  Accused. 

The  accused  has  a  right  to  be  represented  by  counsel  of  his 
own  selection  if  he  is  able  to  employ  them ;  but  where  he  cannot 
or  does  not  secure  them  for  himself  the  court  should  appoint 
some  capable  member  of  the  bar  to  aid  him  in  preparing  and  pre- 
senting his  defence.  In  making  this  appointment  the  court  is 
not  bound  to  regard  the  preferences  of  the  accused,  though 
where  they  are  reasonable  it  generally  does  so ;  and  if  the  accused 


I 


§  598  CRIMINAL    PROCEDURE  671 

refuses  to  accept  the  services  of  the  attorney  designated  by  the 
court  he  may  be  tried  without  one.  Where  the  accused  is  an 
infant,  and  has  no  guardian  of  his  own,  the  court  will  appoint  a 
guardian  ad  litem  for  him,  and  should  this  not  be  done  a  ver- 
dict against  him  would  be  reversible  on  error. 

Rem.  Over  the  counsel  for  the  defence  the  court  will  always 
exercise  a  certain  supervision,  lest  through  his  carelessness  or  ig- 
norance the  cause  of  the  accused  suffer  injury.  Even  where  the 
accused  chooses  his  own  counsel  at  his  own  expense  the  same 
duty  rests  upon  the  court ;  and  it  is  good  ground  for  a  new  trial 
if  this  duty  is  neglected.  Where  counsel  for  the  defence  are  ap- 
pointed by  the  court,  and  the  accused  is  unable  to  give  them 
proper  compensation,  it  is  the  law  of  some  States  that  they  shall 
be  paid  from  the  governmental  treasury.  In  other  States  they 
are  left  to  that  invisible  reward,  which  accompanies  so  many 
valuable  services  rendered  by  a  noble  profession  to  an  unappre^ 
ciative  public. 

Read:  Wharton,  Criminal  Pleading,  §§  557-559; 
Rapalje,  Criminal  Procedure,  §  219; 
Clark,  Criminal  Procedure,  §§  156,  157; 
1  Bishop,  Criminal  Procedure,  §§  295-313; 
Abbott,  Criminal  Brief,  pp.  1-11. 


§  598.     Of  Motions  to  Quash :   Motions  for  a  Change  of  Venue 

A  motion  to  quash  the  indictment  or  information  is  a  request, 
addressed  orally  or  in  writing  to  the  court,  pranng  that  no 
further  proceedings  may  be  had  thereon.  This  motion  may  be 
based  either  upon  matters  apparent  on  the  record,  or  upon  ex- 
trinsic matters  which  are  able  to  be  brought  to  the  attention  of 
the  court,  and  which  manifest  the  inexpediency  of  further  pro- 
ceedings. It  should  be  made  before  or  at  the  time  of  the  arraign- 
ment, although  the  court  has  power  to  hear  and  allow  it  at  any 
time  before  the  verdict.  A  motion  for  a  change  of  vernie  is  a 
request  addressed  to  the  court,  praying  that  the  proceedings  may 
be  transferred  to  another  county  or  local  jurisdiction,  on  the 
ground  that  a  fair  and  impartial  trial  cannot  be  had  in  the  place 
where  the  case  is  pending.  This  motion  can  always  be  made  by 
the  accused,  and  in  some  States  by  the  public  prosecutor  also; 
and  must  be  supported  by  affidavits  or  other  evidence  of  the 
circumstances  which  prevent  a  proper  trial  in  the  present  juris- 


672  ELEMENTARY   LAW  §  599 

diction.  Where  a  change  of  venue  is  granted  no  new  arraign- 
ment is  required  if  the  accused  has  already  made  a  formal 
answer  to  the  accusation. 

Rem.  Both  these  motions  are  addressed  to  the  discretion  of 
the  court  and  are  governed  largely  by  local  practice.  If  they  are 
overruled,  and  the  discretion  of  the  court  has  been  fairly  exer- 
cised, there  is  no  ground  of  error,  but  they  may  be  repeated  if 
new  circumstances  arise  which  might  lead  to  a  different  decision. 

Read:  Archbold,  Criminal  Procedure,  pp.  318-321,  531-539; 
Heard,  Criminal  Pleading,  pp.  260,  261; 
Wharton,  Criminal  Pleading,  §§  83,  385-397,  583-602; 
Maxwell  on  Pleading  and  Practice,  §§  71-78; 
Rapalje,  Criminal  Procedure,  §§  142-144,  157-177,  222; 
Clark,  Criminal  Procedure,  §§  124-126,  142-144; 
1  Bishop,  Criminal  Procedure,  §§  67  a-76,  114,  757  a-774; 
Abbott,  Criminal  Brief,  pp.  30,  31,  46-86; 
Hochheimer,  Crimes  and  Criminal  Procedure,  §§  114-117,  147. 


§  599.     Of  Dilatory  Pleas. 

A  dilatory  plea  is  an  answer  made  by  the  accused  to  the  infor- 
mation or  indictment,  setting  forth  some  reason  of  fact  or  law 
why  the  proceedings  against  him,  at  least  in  their  present  form, 
should  be  discontinued.  As  in  civil  cases  these  reasons  relate 
either  to  the  authority  of  the  court,  or  to  the  mode  in  which  the 
proceedings  may  have  thus  far  been  conducted;  and  are  al- 
leged in  a  plea  to  the  jurisdiction  or  in  a  plea  in  abatement.  A 
plea  to  the  jurisdiction  is  an  allegation  that  the  court  before  which 
the  case  is  pending  has  no  authority  to  hear  and  determine  it, 
either  on  account  of  the  nature  or  the  locahty  of  the  offence,  or 
of  some  legal  exemption  attaching  to  the  person  of  the  accused. 
Where  the  want  of  jurisdiction  appears  on  the  face  of  the  record, 
the  objection  may  be  made  by  a  motion  to  quash.  Where  it 
depends  upon  extrinsic  circumstances  it  must  be  brought  to  the 
attention  of  the  court  by  a  formal  plea.  As  no  jurisdiction  over 
the  offence  can  be  conferred  by  consent,  the  accused  does  not 
waive  the  right  to  take  advantage  of  a  want  of  jurisdiction  by 
pleading  in  bar;  but  may  insist  upon  it  under  the  issue  of  not 
guilty,  or  by  motion  in  arrest  of  judgment,  or  by  a  writ  of  error. 
A  plea  in  abatement  is  an  allegation  that  the  proceedings  are 
void  by  reason  of  some  defect  or  irregularity  therein.      The 


§  600  CRIMINAL   PROCEDURE  673 

principal  grounds  for  this  plea  are  the  misnomer  or  misdescrip- 
tion of  the  accused,  and  irregularities  in  the  summoning  or  con- 
duct of  the  grand-jury,  or  in  the  other  preliminary  steps  before 
the  arraignment.  To  dilatory  pleas  the  prosecution  may  reply  by 
traverse  or  demurrer,  and  the  issues  thus  presented  will  then  be 
heard  and  decided  by  the  court. 

Rem.  The  defects  of  which  advantage  may  be  taken  by  a  plea 
in  abatement  in  criminal  prosecutions  are  few,  as  compared  with 
those  available  in  civil  suits.  Irregularities  in  the  process  or  its 
service  are  of  no  importance,  since  if  the  accused  is  in  the  custody 
of  the  court  it  is  immaterial  whether  he  was  brought  there  by 
lawful  or  unlawful  means,  and  any  defects  which  might  em- 
barrass the  record  are  curable  by  the  issue  of  a  new  warrant  and 
his  arrest  thereon.  The  pendency  of  another  indictment  for  the 
same  offence,  or  a  variance  between  the  indictment  and  the  war- 
rant are  also  unavailable,  since  in  the  first  instance  a  conviction 
or  acquittal  on  either  indictment  will  be  a  bar  to  further  proceed- 
ings in  the  other;  and  in  the  second,  except  in  certain  extraditioi? 
cases,  the  grand-jury  may  present  any  indictment  which  is  dc 
manded  by  the  evidence  before  them,  on  whatever  warrant  th** 
accused  may  have  been  arrested. 

Read:  4  Bl.  Com.,  p]).  .3.3.3-335; 

Archbokl,  Crimiiuil  Procedure,  pp.  336,  337; 

Heard,  Criminal  PloadiiiR,  pp.  265-269; 

Wharton,  Criminal  Pleading,  §§  422-433; 

Rapalje,  Criminal  Proooilure,  §§  120-123; 

Clark,  Criminal  Proredure,  §§  130,  131; 

1  Bishop,  Criminal  Procedure,  §§  734-743,  787-794; 

Abbott,  Criminal  Brief,  pp.  88-100,  149-151  ; 

Hochheimer,  Crimes  and  Criminal  Procedure,  §§  119,  120. 


§  600.     Of  Demurrer. 

A  demurrer  is  an  allegation  that  the  indictment  or  information 
is  insufficient  in  the  law,  either  because  the  acts  described 
therein  do  not  constitute  a  crime,  or  because  the  allegations  it 
contains  are  defective  in  form.  Ordinarily,  a  demurrer  nmst 
be  filed,  if  at  all,  before  jileading  in  V)ar,  but  tlu>  court  for  sufficient 
reasons  may  permit  a  plea  in  bar  to  be  withdrawn  and  a  demurrer 
substituted  in  its  place.  Where  a  denuirrer  on  matters  of  sub- 
stance is  sustained  by  the  cou'-t  the  accused  will  be  discharged 
from  further  liability  under  that  indictment,  but  is  not  protected 
from   innnediate   re-arrest   upon   a   different   charge;    while   if 

43 


674  ELEMENTARY  LAW  §  601 

matter  of  form  alone  is  in  issue  he  may  be  detained  until  a  new 
indictment  can  be  presented  by  the  grand- jury,  or  the  informa- 
tion can  be  amended  by  the  prosecutor.  In  certain  States  the 
local  practice  allows  the  amendment  of  an  indictment  also  in 
mere  formal  matters  by  the  prosecutor,  without  recourse  to  the 
grand-jury.  Where  an  indictment  contains  several  counts,  and 
is  demurred  to  as  a  whole,  the  demurrer  may  be  sustained  as  to 
the  defective  counts,  and  overruled  as  to  the  others.  All  essential 
facts  which  are  properly  set  forth  in  the  indictment  are  admitted 
by  the  demurrer  to  be  true ;  and  hence,  if  the  demurrer  is  over- 
ruled, final  judgment  should  logically  be  rendered  against  the 
accused.  This  matter,  however,  rests  in  the  discretion  of  the 
court,  and  as  a  practical  rule  the  accused  is  allowed  to  plead 
over,  if  he  desires  to  do  so,  in  all  cases  of  felony,  and  usually  also 
in  cases  of  misdemeanor. 

Rem.  Anciently  defects  of  form  as  well  as  of  substance  were 
available  after  verdict  on  a  motion  in  arrest;  and  in  many  in- 
stances it  was  then  advisable  for  the  accused  to  defer  his  objec- 
tion, taking  the  chance  of  a  verdict  in  his  favor,  and  urging  the 
objection  if  the  jury  found  him  guilty.  The  modern  rules  treat 
formal  objections  as  waived  unless  insisted  on  by  demurrer  or 
motion  before  plea,  allowing  only  defects  of  substance  as  a 
ground  of  error  after  verdict. 

Read:  4  Bl.  Com.,  p.  334; 

Archbold,  Criminal  Procedure,  pp.  313-316,  354-357; 

Heard,  Criminal  Pleading,  pp.  270-278,  310-315,  320-324; 

Wharton,  Criminal  Pleading,  §§  90,  273-278  a,  400-407  h; 

Rapalje,  Criminal  Procedure,  §§  109,  119,  223; 

Clark,  Criminal  Procedure,  §§115,  116,  132; 

1  Bishop,  Criminal  Procedure,  §§  704  a-711,  775-786; 

Abbott,  Criminal  Brief,  pp.  37-43 ; 

Hochheimer,  Crimes  and  Criminal  Procedure,  §§  110,  118. 

§  601.     Of  the  Plea  of  Guilty:  Nolo  Contendere. 

A  -plea  of  guilty  is  a  formal  acknowledgment  by  the  accused, 
in  open  court,  that  the  allegations  of  the  indictment  or  informa- 
tion are  true.  It  is  not  necessarily  a  confession  of  guilt,  since  the 
indictment  may  not  properly  charge  a  crime;  but  if  the  indict- 
ment is  correct  in  form  and  sufficient  in  substance  this  plea  is  a 
waiver  of  a  trial,  and  is  equivalent  to  a  verdict  of  guilty  on  which 
the  court  may  proceed  to  judgment.     A  plea  of  nolo  contendere 


§  602  CRIMINAL    PROCEDURE  675 

is  an  indirect  plea  of  guilty  by  which  the  accused  declines  to 
traverse  or  demur  to  the  indictment,  and  throws  himself  on  the 
mercy  of  the  court.  This  plea  admits  nothing  that  can  afterwards 
be  taken  advantage  of  by  any  private  interested  party,  and  is 
resorted  to  for  the  purpose  of  disposing  of  the  case  with  the 
least  possible  trouble,  and  with  as  small  a  penalty  as  the  court 
can  be  induced  to  give.  The  same  object  is  sometimes  accom- 
plished by  a  demurrer  which  is  overruled  and  followed  by  a 
sentence.  Neither  a  plea  of  guilty  nor  a  nolo  contendere  will 
prevent  the  accused  from  raising  an  objection  to  an  indictment, 
which  is  defective  in  substance,  by  a  motion  in  arrest. 

Rem.  In  capital  cases,  where  the  defendant  pleads  guilty,  it  is 
customary  for  the  court  to  advise  him  to  change  his  plea  to  not 
guilty  and  submit  himself  to  a  trial,  but  it  cannot  compel  him  to 
do  so ;  and  if  he  insists  on  his  plea  of  guilty  it  must  be  so  entered 
on  the  record,  and  the  court  must  either  suspend  judgment  or 
sentence  him  according  to  law.  If  the  accused  has,  without  due 
consideration,  pleaded  guilty  the  court  will  also,  in  important 
cases,  allow  him  before  sentence  to  retract  his  plea,  and  plead 
not  guilty. 

Read:  4  Bl.  Com.,  p.  329; 

Heard,  Criminal  Pleading,  pp.  262-265; 

Wharton,  Criminal  Pleading,  §§  408-421; 

Rapalje,  Criminal  Procedure,  §  118; 

Clark,  Criminal  Procedure,  §  129; 

1  Bishop,  Criminal  Procedure,  §§  744-757,  794a-802; 

Abbott,  Criminal  Brief,  pp.  143-148; 

Hochheimer,  Crimes  and  Criminal  Procedure,  §§  124,  125. 

§  602.     Of  the  Plea  of  Former  Jeopardy. 

A  plea  of  former  jeopard//  is  an  allegation  that  the  accused  has 
already  been  in  jeopardy  for  the  offence  now  charged  in  the 
indictment.  It  is  a  maxim  of  our  law  that  no  person  can  be 
twice  put  in  jeopardy  for  the  same  crime ;  and  therefore  when 
this  plea  can  be  substantiated  it  operates  as  a  complete  defence. 
Two  questions  are  presented  by  this  plea:  First,  Has  the  ac- 
cused ever  been  in  jeopardy?  Second,  Was  it  for  the  same 
offence?  In  answer  to  the  fxrat  question  the  following  points  may 
be  regarded  as  well  settled  by  the  courts  :  (1)  That  jeopardy 
does  not  begin  until   the  trial  jury  has   been   impanelled   and 


676  ELEMENTARY   LAW  §  602 

sworn,  and  the  case  has  been  committed  to  them  for  investiga- 
tion on  the  issues  tendered  by  the  pleadings;  (2)  That  if  the 
trial  ends  without  a  verdict  through  the  act  or  with  the  consent 
of  the  accused,  or  through  a  want  of  jurisdiction  in  the  court  or 
from  defects  in  other  proceedings,  there  has  been  no  jeopardy; 
(3)  That  where  the  jury  are  dismissed  on  account  of  the  death 
or  illness  of  one  or  more  of  them,  or  because  of  their  hopeless 
disagreement,  though  against  the  protest  of  the  accused,  he  has 
not  been  in  jeopardy.  On  the  other  hand  it  is  settled  that  former 
jeopardy  existed  if  the  accused  has  been  already  convicted  or 
acquitted  on  a  valid  indictment.  But  whether  the  accused  has 
been  in  jeopardy  where  after  the  trial  was  begun,  and  while  it 
was  progressing  with  every  prospect  of  reaching  a  verdict,  the 
prosecutor  of  liis  own  motion,  and  against  the  protest  of  the 
accused,  discontinued  the  proceedings  by  a  nolle  prosequi,  is  a 
matter  upon  which  the  rulings  of  the  courts  are  not  in  harmony 
with  one  another.  In  answer  to  the  second  question  the  modern 
doctrine  of  our  courts  is  that  the  accused  has  been  in  jeopardy 
for  the  same  offence  in  the  following  cases :  (1)  When  he  has 
been  legally  convicted  or  acquitted  on  an  indictment  charging 
the  accused  with  having  committed  precisely  the  same  offence 
against  the  same  sovereignty;  (2)  When  he  has  been  already 
legally  convicted  or  acquitted  by  a  general  verdict  on  an  indict- 
ment which  alleged  his  commission,  against  the  same  sovereignty, 
of  a  higher  crime  in  which  the  offence  for  which  he  is  now  prose- 
cuted was  embraced  as  one  of  its  essential  elements,  and  of  which 
he  might  have  been  separately  convicted  if  the  evidence  had 
proved  him  guilty;  (3)  When  he  has  already  been  legally  ac- 
quitted on  an  indictment  charging  him  with  a  lesser  offence 
which  is  an  essential  element  in  the. greater  crime  set  forth  in 
the  present  indictment;  (4)  When  under  an  indictment  for  a 
higher  crime,  of  which  the  crime  now  charged  against  him  is  an 
essential  ingredient,  he  has  been  convicted  of  any  lesser  offence 
whatever,  and  thus  has  been  impliedly  acquitted  of  the  rest. 
Whether  a  previous  conviction  on  an  indictment  for  a  lesser 
offence,  which  is  necessarily  included  in  the  higher  crime  alleged 
in  the  present  indictment,  is  proof  of  former  jeopardy  is  a  dis- 
puted question ;  some  courts  regarding  it  as  a  complete  defence ; 
others  ignoring  it,  especially  in  cases  where  the  offence  has  taken 


§  603  CRIMINAL    PROCEDURE  G77 

on  its  graver  character  through  consequences  resulting  since  the 
previous  conviction. 

Rem.  A  plea  of  former  jeopardy  when  based  on  a  conviction 
is  called  a  plea  of  "autrefois  convict";  when  based  on  an  ac- 
quittal, a  plea  of  "autrefois'  acquit."  It  must  set  forth  the  record 
of  the  former  conviction  or  acc|uittal,  and  aver  that  the  offence 
and  the  offender  described  therein  are  identical  with  those  now 
before  the  court.  It  closes  with  a  verification,  and  may  be  met 
with  a  demurrer  or  a  denial.  The  accused  nmst  establish  the 
allegations  of  his  plea  by  proper  documentary  and  oral  evidence. 
If  he  does  this,  he  is  entitled  to  his  discharge ;  if  not,  he  is  gen- 
erally permitted  to  plead  over,  and  go  to  trial  on  the  merits  of 
the  case. 

Read:  4  Bl.  Com.,  pp.  335-337; 

Archbold,  Criminal  Procedure,  pp.  338-352; 

Heard,  Criminal  Pleading,  pp.  279-295; 

Hawley,  Criminal  Law,  pp.  76-79; 

Clark,  Criminal  Law  (Tiffany  Ed.),  §  174; 

Wharton,  Criminal  Pleading,  §§  429-520; 

Wharton,  Criminal  Evidence,  §§  570-593; 

Rapalje,  Criminal  Procedure,  §§  124-141; 

Clark,  Criminal  Procedure,  §§  133-138; 

Underhill,  Criminal  Evidence,  §§  194-198; 

1  Bisiiop,  Criminal  Law,  §§  978-1070  a; 

1  Bi.shop,  Criminal  Procedure,  §§  805-831; 

Abbott,  Criminal  Brief,  pp.  100-142; 

Hochheimer,  Crimes  and  Criminal  Procedure,  §  121; 

Rice,  Criminal  Evidence,  §§  381-385. 

§  603.     Of  the  Plea  of  Pardon. 

A  'plea  of  pardon  is  an  allegation  that  the  accused  has  been 
released,  by  competent  authority,  from  liability  to  prosecution 
and  punishment  for  the  offence  charged  in  the  inchctment.  The 
jKnver  to  'pardon  offences  against  the  United  States,  except  in 
cases  of  impeachment,  is  vested  in  the  President.  In  the  indi- 
vidual States  it  is  lodged  in  the  governor,  legislature,  board  of 
pardons,  or  other  authorities,  according  to  their  local  laws.  A 
pardon  is  a  matter  of  pure  discretion,  and  may  be  either  ab.wliite 
or  conditional ;  and  if  conditicmal  is  valid  only  when  and  .so  long 
as  the  condition  is  fulfilled.  It  takes  effect  from  the  delivery  of 
the  charter  of  pardon  to  and  its  acceptance  by  the  offender;  and 
its  operation  is  limited  to  the  particular  offences  which  the  c-harter 
describes.    A  plea  of  pardon  must  set  out  the  charter,  and  make 


678  ELEMENTARY  LAW  §  604 

profert  thereof ;  and  the  charter  itself  duly  verified  must  be  pro- 
duced in  court,  together  with  evidence  identifying  the  accused 
with  the  person  pardoned.  Where,  as  in  some  political  cases, 
pardon  is  granted  to  a  large  number  of  persons  by  a  public 
statute,  or  a  proclamation  of  amnesty,  the  courts  take  judicial 
notice  thereof,  and  only  proof  to  show  that  the  accused  was 
included  in   the   number  pardoned  is   required. 

Rem.  A  commutation  of  sentence,  or  an  indefinite  suspension 
of  judgment  after  verdict,  are  not  the  equivalents  of  a  pardon. 
While  they  may  prevent  or  nullify  the  punishment  they  do 
not,  like  a  pardon,  extinguish  the  guilt  and  imputation  of  the 
crime. 

Read:  4  Bl.  Com.,  pp.  337,  338; 

Archbold,  Criminal  Procedure,  p.  353; 

Heard,  Criminal  Pleading,  pp.  295,  296; 

Wharton,  Criminal  Pleading,  §§  521-536; 

Clark,  Criminal  Procedure,  §§  139,  140; 

1  Bishop,  Criminal  Law,  §§  897-926  a; 

1  Bishop,  Criminal  Procedure,  §§  832-848; 

Abbott,  Criminal  Brief,  p.  143; 

Hochheimer,  Crimes  and  Criminal  Procedure,  §§  122,  201-203. 

§  604.     Of  the  Plea  of  Not  Guilty. 

A  plea  of  not  guilty  denies  all  the  allegations  of  the  indictment, 
as  well  as  the  legal  sufficiency  of  the  matters  alleged  to  constitute 
a  crime.  It  is  the  only  plea  which  puts  in  issue  the  actual  guilt 
or  innocence  of  the  accused,  and  therefore  it  raises  every  question 
of  fact  or  law  involved  in  his  relation  to  the  supposed  offence; 
including  his  mental  capacity,  his  commission  of  the  act,  the 
existence  of  the  criminal  and  specific  intents,  and  every  form  of 
justification  or  excuse.  This  plea  is  offered  orally  by  the  accused 
upon  his  arraignment,  and  is  entered  on  the  record  together  with 
the  replication  of  the  prosecutor  that  the  accused  is  guilty  as 
alleged. 

Rem.  Upon  the  plea  of  not  guilty  the  prosecution  has  the 
burden  of  proof,  and  though  as  to  some  special  lines  of  defence  the 
accused  is  expected  to  take  the  initiative,  and  go  forward  in  ex- 
plaining and  adducing  evidence  in  support  of  what  he  claims, 
the  prosecution  must  prove  its  case  in  every  essential  detail,  and 
beyond  reasonable  doubt,  upon  the  whole  issue  of  guilty  or  not 
guilty  as  created  by  the  plea. 


604  CRIMINAL   PROCEDURE  679 

Read:  4  Bl.  Com.,  pp.  338-341; 

Archbold,  Criminal  Procedure,  pp.  333-335; 

Heard,  Criminal  Pleading,  p.  297; 

Rapalje,  Criminal  Procedure,  §  117; 

Clark,  Criminal  Procedure,  §  141; 

Hochheimer,  Crimes  and  Criminal  Procedure,  §  123. 


680  ELEMENTARY   LAW  §  60,1 


CHAPTER   IV 

OF    THE    TRIAL,   JUDGMENT,    AND    EXECUTION    IN 
CRIMINAL   CASES 

§  605.     Of  the  Trial:  the  Right  of  Trial  by  Jury. 

A  trial  is  a  legal  investigation  by  a  competent  tribunal  of  the 
issues  created  by  the  formal  accusation  and  the  plea.  No  trial 
upon  the  merits  can  take  place  except  under  the  plea  of  not 
guilty,  and  this  trial  must  in  most  cases  be  conducted  before  a 
petit-jury,  acting  under  the  supervision  and  with  the  assistance  of 
the  judge.  The  right  of  trial  by  jury,  as  guaranteed  by  the  Fed- 
eral and  State  Constitutions,  does  not  extend  to  trivial  offences, 
nor  to  cases  of  contempt,  nor  to  proceedings  wholly  unknown  to 
the  law  at  the  time  these  constitutions  were  adopted.  Nor  does 
it  secure  to  the  accused  in  any  case  a  trial  before  a  jury  immedi- 
ately upon  his  apprehension,  or  without  first  passing  through  a 
trial  before  some  subordinate  tribunal.  It  is  considered  by  the 
courts  that  the  right  is  fully  vindicated  if  the  accused  is  so  pro- 
tected that  he  cannot  be  pimished,  against  his  will,  for  an  al- 
leged offence  without  the  submission  of  his  case  to  a  jury  of  his 
peers. 

Rem.  Thus  it  is  the  practice  to  endow  inferior  courts  with 
power  to  hear  and  determine  criminal  cases  without  a  jury,  giv- 
ing to  the  accused  an  appeal,  if  he  desires  it,  to  a  higher  court 
where  a  jury  can  be  had ;  or  to  offer  the  accused  an  election  be- 
tween a  speedy  trial  before  a  single  judge  and  a  postponement 
until  a  session  of  the  court  to  which  a  jury  will  be  summoned ; 
and  both  these  practices,  though  undoubtedly  most  oppressive  in 
many  instances,  are  regarded  by  the  present  law  as  consistent 
with  the  constitutional  rights  of  the  accused.  In  felonies,  and 
sometimes  in  other  crimes,  it  is  held  that  an  accused  person 
must  be  tried  by  jury;  and  that  as  this  right  is  one  of  public 
policy  rather  than  of  personal  privilege,  it  is  one  which  the  ao- 
cused  cannot  waive. 


§§  606,  607  CRIMINAL    PROCEDURE  681 

Read:  4  Bl.  Com.,  pp.  349,  350; 

Rapalje,  Criminal  Procedure,  §§  145-153; 
Clark,  Criminal  Procedure,  §§  158,  159; 
1  Bishop,  Criminal  Procedure,  §§  890-894; 
Abbott,  Criminal  Brief,  pp.  151-157,  200-289; 
Hochheimer,  Crimes  and  Criminal  Procedure,  §§  141,  142, 

§  606.     Of  the  Trial:  the  Petit-Jury. 

A  petit-jury  for  the  trial  of  criminal  cases  consists  of  twelve 
men,  unless  the  local  law  permits  a  different  number,  who  are 
summoned  by  a  venire  from  the  body  of  the  county,  and  are 
duly  sworn  and  impanelled  to  try  the  accused  upon  a  particular 
indictment.  They  are  subject  to  challenges  to  the  array  on  ac- 
count of  some  defect  in  the  venire  or  its  service ;  and  to  challenges 
to  the  polls  on  account  of  known  personal  bias  or  unfitness ;  and 
to  challenges  to  the  favor  for  some  fault  which  in  the  judgment 
of  the  court  may  render  it  unwise  to  employ  them  on  the  panel. 
Either  the  prosecutor  or  the  accused  may  also  challenge  a  cer- 
tain number  peremptorily,  or  without  assigning  any  reason. 
All  objections  to  jurors  must  regularly  be  made  before  they  are 
sworn  and  enter  on  their  duties,  but  the  court  may  entertain 
them  after  the  trial  has  commenced  if  the  rea.sons  for  them  then 
first  became  known  to  the  objector. 

Rem.  The  general  rules  and  customs  governing  the  summon- 
ing and  challenging  a  jury,  and  those  which  prescribe  the  ol)liga- 
tions  and  restrictions  under  which  they  labor  are  the  same  as  in 
the  trial  of  civil  cases  in  the  courts  of  common  law.  In  some 
particulars,  indeed,  these  rules  are  even  more  stringently  ap- 
))lie(l,  for  the  protection  of  the  accused,  and  to  avoid  the  errors 
which  might  result  in  a  reversal  of  the  verdict  and  its  conse- 
quent delays. 

Read:  4  Bl.  Com.,  pp.  3.50-3.55; 

Archbold,  Criminal  Procoduro,  pp.  485-528; 

Wharton,  Criminal  Picadinc,  S§  (■)0.")-694; 

Rapalje,  Criminal  Procedure,  §§  17<S-211; 

Clark,  Criminal  Procedure,  §§  100-107; 

1  Bisliop,  Criminal  Procedure,  Si?  89.5-951  /; 

Hochheimer,  Crimes  and  Criminal  Procedure,  §§  127-140; 

Rice,  Criminal  Evidence,  §§  147-150. 

§  607.     Of  the  Trial:  the  Rights  of  the  Accused. 

Every  person  accusi-d  of  crimr  lias  a  right  to  a  puhlir  trial  as 
a  safeguard  to  the  interests  of  justice,   though   the   court   has 


682  ELEMENTARY   LAW  §  607 

power  to  limit  the  attendance  to  a  reasonable  number,  and  to 
exclude  particular  persons  who,  on  moral  grounds,  ought  not 
to  be  allowed  to  listen  to  the  evidence.  The  accused  also  has  a 
right  to  be  'present  in  the  court  room,  and  within  sight  and  hear- 
ing of  all  those  proceedings  of  the  trial  wliich  bear  upon  his 
guilt  or  innocence,  or  could  affect  the  verdict  of  the  jury;  and 
if  the  charge  is  felony  the  accused  can  neither  waive  this  right 
nor  forfeit  it  by  any  conduct  of  his  own.  Moreover,  while  he 
may  be  kept  in  custody  in  the  court  room  if  the  court  fears  his 
escape,  yet  he  must  not  be  subjected  to  unnecessary  restraint  nor 
appear  in  court  confined  with  chains  or  similar  appliances. 
Before  the  trial  commences  he  usually  has  a  right  to  a  copy  of 
the  indictment,  and  a  list  of  the  witnesses  who  are  to  be  called 
against  him ;  and  if  he  has  no  means  to  provide  for  his  own  de- 
fence he  may  have  his  own  witnesses  summoned  by  the  State. 
He  may  also  require  a  copy  of  the  names  of  the  proposed  jurors ; 
and  where  the  allegations  of  the  indictment  are  indefinite  he  is 
entitled  to  a  bill  of  particulars  setting  forth  the  details  of  the 
charge.  Still  further,  he  has  a  right  to  the  presence  of  the  judge 
in  the  court  room  during  all  the  proceedings ;  to  be  represented 
by  counsel  of  his  own  selection  or  the  appointment  of  the  court; 
to  be  confronted  personally  with  the  witnesses  against  him;  to 
have  their  testimony  interpreted  when  necessary,  and  to  enjoy 
an  opportunity  to  cross-examine  and  to  contradict  them;  and 
to  be  treated  at  all  times,  by  the  judge  and  by  the  prosecuting 
officer,  with  respect  and  consideration,  as  a  citizen  whose  inno- 
cence is  presumed,  in  spite  of  popular  prejudice  and  suspicious 
circumstances,  until  his  guilt  is  demonstrated  by  legitimate  evi- 
dence beyond  reasonable  doubt.  Where  there  are  several  indict- 
ments against  him  which  could,  with  greater  economy  to  the 
State  and  advantage  to  the  accused,  be  tried  together,  the  court 
may  order  them  to  be  consolidated  as  if  they  were  different  counts 
in  one  indictment.  Where  there  are  several  joint  defendants  they 
may  be  tried  separately  or  together  as  the  court  directs. 

Rem.  While  these  rules  for  the  protection  of  the  accused  are 
carried  to  the  greatest  possible  extent,  yet  there  is  a  limit  beyond 
which  the  public  welfare  may  forbid  the  State  to  go.  Thus  where 
a  prisoner  on  his  trial  is  so  turbulent  that  the  case  cannot  proceed, 
or  is  so  dangerous  that  physical  restraint  must  be  imposed  upon 


§  608  CRIMINAL   PROCEDURE  683 

him  in  order  to  secure  the  personal  safety  of  those  individuals 
who  are  necessarily  present,  the  court  may  take  such  measures  as 
the  emergency  demands. 

Read:  4  Bl.  Com.,  pp.  355,  356; 

Archbold,  Criminal  Procedure,  pp.  311,  312; 

Wharton,  Criminal  Pleading,  §§  540-551,  696-698,  702-705; 

Rapalje,  Criminal  Procedure,  §§  154-156,  214-218,  220; 

Clark,  Criminal  Procedure,  §§  145-155,  171; 

1  Bishop,  Criminal  Procedure,   §§  14-25,   117-126,  265-277,  454- 

462,  643-646,  952-959/,  1017-1045; 
Abbott,  Criminal  Brief,  pp.  21-24,  32-37,  43-46,  86-88,  157-195, 

198-199,  293-304; 
Hochheimer,  Crimes  and  Criminal  Procedure,  §§  126,  144-146; 
Rice,  Criminal  Evidence,  §§  243-247. 


§  608.     Of  the  Trial:  the  Evidence. 

The  general  rules  which  govern  the  production  of  evidence  are 
the  same  in  criminal  as  in  civil  cases.  The  principal  special 
rules  are  the  following:  (1)  The  State  must  jprove  affirmatively, 
and  beyond  reasonable  doubt,  every  material  allegation  in  the 
indictment;  (2)  In  order  to  warrant  a  conviction  the  testimony 
on  the  entire  case  must  be  so  conclusive  as  to  exclude  every  reason- 
able hypothesis  except  that  of  the  defendant's  guilt;  (3)  The 
corpus  delicti  must  be  established  by  evidence  other  than  the 
extrajudicial  admissions  of  the  accused;  (4)  Where  a  specific 
intent  is  laid  in  the  indictment  it  must  be  proved  as  laid:  (5) 
Circumstantial  evidence  is  admissible,  and  where  the  circum- 
stances are  clearly  proved,  and  the  inference  of  guilt  necessarily 
results  therefrom,  it  may  be  equally  conclusive  with  direct  evi- 
dence ;  (G)  All  matters  constituting  parts  of  the  res  gestcB  may 
be  produced  in  evidence,  as  well  as  matters  pro\ing  motive, 
preparation,  or  intent  to  commit  the  crime,  and  matters  showing 
its  subsequent  concealment,  or  the  possession  of  its  fruits,  or 
the  consciousness  of  guilt;  (7)  If  a  conspiracy  is  charged  and 
proved  the  acts  of  any  of  the  conspirators,  in  pursuance  of  the 
common  purpose,  and  their  declarations  made  in  the  presence 
of  the  defendant,  may  be  given  in  evidence  against  him;  (8) 
An  accomplice  may  be  a  witness  against  the  accused,  but  the 
testimony  of  one  accomplice  is  not  corroborated  by  that  of 
another,  and  it  is  ordinarily  held  to  be  the  duty  of  the  judge  to 
instruct  the  jury  not  to  convict  upon  such  evidence  alone;    (9) 


684  ELEMENTARY  LAW  §  608 

Evidence  given  in  a  former  trial  of  the  same  defendant  on  the 
same  indictment  may  be  proved  by  the  record  or  by  those  who 
heard  it,  provided  the  witness  has  since  died,  or  has  become 
insane,  or  has  gone  beyond  the  reach  of  process,  or  is  kept  away 
from  court  by  the  defendant;  (10)  The  voluntary  confession  of 
the  accused,  when  made  neither  under  fear  nor  with  hope  of 
favor  nor  as  the  result  of  any  species  of  coercion,  is  competent 
evidence  against  him;  (11)  Where  the  defendant  avails  himself 
of  his  privilege  to  become  a  ivitness  he  is  subject  to  cross-examina- 
tion and  contradiction,  like  any  other  witness,  on  any  matter 
involved  in  the  charge  against  him ;  (12)  No  witness,  other 
than  the  defendant  when  examined  under  the  preceding  rule, 
can  be  compelled  to  disclose  matters  that  might  entail  upon  him 
a  criminal  prosecution,  or  expose  him  to  a  penalty  or  to  the  for- 
feiture of  his  estate;  (13)  Expert  testimony,  when  relevant,  is 
admissible  as  in  civil  cases;  (14)  Evidence  of  the  character  of 
the  accused  may  be  given  on  liis  behalf,  but  never  against  him 
except  in  reply  to  such  evidence  first  introduced  in  his  favor ;  (15) 
In  capital  rases  the  evidence  of  guilt  must  be  equivalent  in  weight 
and  conclusiveness  to  the  direct  testimony  of  two  competent 
and  reliable  witnesses ;  (16)  In  cases  of  homicide  the  dying  dec- 
larations of  the  victim,  made  under  the  apprehension  of  impend- 
ing death,  are  admissible  to  show  the  cause  of  death  and  the 
person  of  the  slayer. 

Rem.  Reasonable  doubt  as  to  the  guilt  of  the  accused,  the  ex- 
istence of  which  in  the  mind  of  a  juror  forbids  him  to  vote  for  a 
conviction,  is  a  doubt  for  which  the  juror  has  and  can  give  to 
himself  an  adequate  and  satisfactory  reason.  As  persons  are  not 
to  be  convicted  because  the  jury  have  a  suspicion  that  they  may 
be  guilty,  so  they  are  not  to  be  acquitted  in  the  face  of  logically 
conclusive  evidence  because  a  juror  suspects  that,  after  all,  they 
may  be  innocent.  Though  no  weight  of  mere  probabilities  can 
warrant  a  conviction,  yet  absolute  and  infallible  certainty  is  not 
required.  If  the  testimony  is  so  strong  and  exhaustive  that  the 
juror  can  see  no  reason  for  discrediting  it,  and  no  reasonable  way 
of  explaining  it  except  by  admitting  the  defendant's  guilt,  his 
oath  obliges  him  to  vote  for  a  conviction;  in  any  other  circum- 
stances he  must  vote  for  an  acquittal. 

Read:  4  Bl.  Com.,  pp.  356-360; 

Archbold,  Criminal  Procedure,  pp.  359-427,  436-484,  531-539,  540- 

545,  798-826; 
Roscoe,  Criminal  Evidence,  pp.  40-106; 


609  CRIMINAL    PROCEDURE  685 

Kenney,  Criminal  Law,  pp.  316-381; 

Wharton,  Criminal  Evidence,  §§  1-150,  319-481,  623-851; 

Rapalje,  Criminal  Procedure,  §§  224,  227-329; 

Clark,  Criminal  Procedure,  §§  177,  191-223; 

Underliill,   Criminal   E\adenee,  §§  1-24,   57-92,    115-153,    169-193, 

225,  226; 
1  Bishop,  Criminal  Procedure,  §§  1045-1262; 
Abbott,  Criminal  Brief,  pp.  304-590; 
McClain,  Criminal  Law,  §§  395-431; 

Hochheimer,  Crimes  and  Criminal  Procedure,  §§  148,  149,  154-177; 
Rice,  Criminal  Evidence,  §§  1-98,  153-158,  203-223,  248-272,  306- 

329,  342-356,  371-380,  417-428. 


§  609.     Of  the  Trial:  the  Arguments  of  Counsel. 

The  arguments  of  counsel  take  place  in  the  order  prescribed 
by  statute  or  by  local  usage.  At  the  opening  of  the  trial,  and 
before  the  production  of  any  evidence,  the  prosecutor  may  and 
generally  does  state  to  the  jury  the  nature  of  the  accusation, 
and  the  testimony  which  he  intends  to  bring  forward  to  sustain 
it.  The  counsel  for  the  accused,  before  introducing  his  evidence, 
usually  explains  in  the  same  manner  what  he  claims  and  expects 
to  prove.  These  statements  should  be  truthful,  and  accurately 
represent  the  testimony  which  is  to  follow.  The  remaining  argu- 
ments, wliich  are  presented  after  the  evidence  has  been  offered, 
consist  of  and  should  be  confined  to  a  discussion  of  the  facts  dis- 
closed by  the  testimony  and  the  law  applicable  thereto.  In  some 
States  the  counsel  for  the  accused,  and  in  other  States  the  prose- 
cuting officer,  has  the  right  to  close. 

Rem.  In  criminal  as  in  civil  cases  it  is  the  duty  of  the  court 
to  keep  the  arguments  of  counsel  within  the  Hmits  of  truthfulness 
and  decorum.  Unwarranted  denunciations  of  the  accu.sed  by  the 
prosecuting  officer,  when  calculated  to  prejudice  or  mislead  the 
jury,  are  especially  objectionable  and  should  be  promptly  inter- 
rupted by  the  judge;  and  if  he  fails  to  do  this,  and  allows  them 
to  continue,  it  is  ground  of  error. 

Read:  Archbold,  Criminal  Procedure,  pp.  540,  548-550; 
Wharton,  Criminal  Pleading,  §§  560-579; 
Rapalje,  Criminal  Procedure,  §§  330-343; 
Clark.  Criminal  Procedure,  §§  168-170.  172.  173; 
1  Bishop,  Criminal  Procedure,  §§  9(iO-975  6; 
Abbott,  Criminal  Brief,  pp.  290-293,  .")93-009; 
Hochheimer,  Crimes  anil  Criminal  Procedure,  §  150; 
Rice,  Criminal  E\-idence,  §§  104-134. 


686  ELEMENTARY  LAW  §§  610,  611 

§  610.     Of  the  Trial:   the  Charge  of  the  Court  to  the  Jury. 

The  charge  of  the  court  to  the  jury  consists  of  an  explanation 
of  the  law  governing  the  case,  and  of  such  a  review  of  the  evi- 
dence as  may  be  necessary  to  enable  the  jury  to  understand  its 
bearing  on  the  issues,  and  the  application  to  it  of  the  law.  Ex- 
traneous matters,  and  hypotheses  which  tend  to  withdraw  the 
attention  of  the  jury  from  the  true  issues,  or  to  confuse  their 
minds  and  memories,  and  all  undue  manifestations  of  prejudice 
against  one  side  or  the  other,  must  be  avoided;  and  the  court 
must  confine  itself  to  legitimate  endeavors  to  make  the  jury 
comprehend  the  case  and  the  principles  which  should  guide 
them  in  arriving  at  their  verdict.  If  the  counsel  on  either  side 
desire  that  particular  legal  propositions  should  be  stated  by  the 
court  to  the  jury,  it  is  their  duty  to  present  them  to  the  judge  in 
due  season ;  and  should  he  refuse  to  repeat  them  to  the  jury  an 
exception  may  be  taken,  on  which  a  writ  of  error  may  be  based 
unless  the  charge,  as  actually  delivered,  correctly  and  sufficiently 
explains  the  law.  Any  defect  in  the  charge,  of  which  the  accused 
may  wish  to  take  advantage,  must  be  called  to  the  attention  of  the 
court  before  or  at  the  time  the  charge  is  finished,  and  if  not  then 
corrected  by  the  court  an  exception  should  be  noted  on  the  record. 

Rem.  Where  the  jury  are  by  local  statutes  made  judges  of 
the  law,  as  well  as  of  the  facts,  the  instructions  of  the  court  to  the 
jury  become  even  more  important,  and  should  be  prepared  and 
delivered  with  the  greatest  accuracy  and  clearness,  since  if  the 
jury  then  fall  into  error,  through  a  mistake  of  law,  the  fault  is 
irremediable. 

Read:  Archbold,  Criminal  Procedure,  pp.  529,  530,  540,  548-550,  552- 
555,  826-830; 

Wharton,  Criminal  Pleading,  §§  707,  708; 

Rapalje,  Criminal  Procedure,  §§  344-360; 

Clark,  Criminal  Procedure,  §§  174-176; 

Underhill,  Criminal  Evidence,  §§  273-280; 

1  Bishop,  Criminal  Procedure,  §§  975  c-989  h; 

Abbott,  Criminal  Brief,  pp.  590-593,  609-704; 

Hochheimer,  Crimes  and  Criminal  Procedure,  §§  143,  151; 

Rice,  Criminal  Evidence,  §§  135-146. 

§  611.     Of  the  Trial:  the  DeUberations  of  the  Jury;  the  Verdict. 

The  deliberations  of  the  jury  upon  the  law  and  the  evidence 
are  conducted  in  private,  wliile  they  are  under  the  charge,  though 


§  611  CRIMINAL  PROCEDURE  687 

not  in  the  presence,  of  an  officer  of  the  court.  In  these  deHbera- 
tions  it  is  their  duty  to  confine  their  attention  to  the  testimony 
which  has  been  given  in  open  court,  and  to  the  law  as  deUvered 
to  them  by  the  judge,  and  not  to  receive  evidence  or  information 
from  one  another  or  from  outside  sources,  tliough  if  they  violate 
this  rule  there  is  ordinarily  no  way  to  take  advantage  of  their 
error.  If  they  are  in  doubt  upon  any  question  of  fact  or  law  in 
the  case  they  may  return  into  the  court  room,  and  ask  the  judge 
for  further  instructions.  When  they  are  all  agreed,  either  for 
conviction  or  acquittal,  they  appear  in  court,  their  names  are 
called,  the  accused  is  placed  before  them,  and  their  foreman  an- 
nounces their  verdict  of  guilty  or  not  guilty  upon  the  matters 
alleged  in  the  indictment.  This  verdict,  if  ratified  by  the  other 
jurors  and  accepted  by  the  court,  is  duly  entered  and  then  cannot 
afterwards  be  withdrawn  or  amended,  nor  can  any  juror  dissent 
therefrom.  When  the  jury  cannot  agree  upon  a  general  verdict 
of  guilty  or  not  guilty,  on  the  indictment  as  a  whole,  they  may 
render  a  'partial  verdict;  convicting  the  accused  on  one  count, 
or  on  one  part  of  a  divisible  count,  or  of  one  of  the  lesser  crimes 
comprehended  in  the  crime  alleged  in  the  indictment,  and  thereby 
acquit  him  of  the  residue.  When  the  facts  are  intricate,  and  the 
law  and  its  application  to  the  facts  are  difficult  for  them  to  under- 
stand, they  may  return  a  special  verdict,  finding  the  facts  in  detail 
and  leaving  the  legal  conclusion  from  the  facts  to  be  determined 
by  the  court. 

Rem.  If  after  sufficient  consultation  among  themselves  the 
jury  cannot  agree  upon  any  verdict,  they  may  announce  their 
situation  to  the  court,  and  request  to  be  dismissed  from  further 
consideration  of  the  case.  In  ancient  times  it  was  the  custom  of 
the  courts  to  hold  the  jury  together,  under  various  bodily  priva- 
tions, until  they  did  agree  on  some  verchct,  and  this  custom  was 
not  without  many  advantages  both  to  the  defendant  and  the  pub- 
lic. But  in  the  modern  practice,  when  it  is  evident  that  no  vol- 
untary agreement  can  be  reached,  the  case  is  withdrawn  from 
their  consideration  and  the  accused  remanded  for  another  trial. 

Read:  4  Bl.  Com.,  pp.  300,  361 ; 

Arclibolil,  Criminal  Procedure,  pp.  555-572; 
Heard,  Criminal  Ploadinj;.  pp.  299-309; 
Wharton.  Criminal  Ploa.ling,  §§  716-758; 
Rapaljc,  Criminal  Procedure,  §§  225,  226,  361-378; 
Clark,  Criminal  Procedure,  §§  122,  123,  178-185; 


688  ELEMENTARY  LAW  §  612 

1  Bishop,  Criminal  Procedure,  §§  990-1016; 

Abbott,  Criminal  Brief,  pp.  704-734 ; 

Hochheimer,  Crimes  and  Criminal  Procedure,  §§  178-182; 

Rice,  Criminal  Evidence,  §§  152,  159-169. 

§  612.     Of    Motions   for    a   New    Trial:    Motions   in   Arrest   of 
Judgment. 

After  a  verdict  of  guilty,  and  before  judgment  or  sentence  is 
pronounced  by  the  court,  there  are  two  proceedings  of  which,  if 
the  occasion  warrants,  the  defendant  may  avail  himself.  These 
are  (1)  A  motion  for  a  new  trial;  (2)  A  motion  in  arrest  of  judg- 
ment. A  motion  for  a  new  trial  is  addressed  to  the  discretion  of 
the  court,  and  prays  that  the  verdict  may  be  set  aside  and  a  new 
trial  be  directed.  This  motion  may  be  based  upon  any  material 
irregularity  arising  in  the  course  of  the  former  trial,  —  such  as  a 
defect  in  summoning  or  impanelling  the  jury;  the  misconduct 
of  the  prosecutor,  or  the  judge,  or  any  of  the  jury;  misrulings 
of  the  court  in  admitting  or  excluding  evidence,  or  in  charging 
the  jury;  the  discovery  of  new  and  important  testimony;  the 
illegality  of  the  verdict,  or  its  want  of  conformity  to  the  evidence, 
or  its  intrinsic  invalidity;  or  any  other  ground  which,  if  recited 
in  the  record,  and  made  the  subject  of  a  bill  of  exceptions,  would 
probably  result  in  a  reversal  of  the  judgment  on  a  writ  of  error. 
A  motion  in  arrest  of  judgment  prays  that  the  court  withhold  its 
judgment  on  the  verdict,  and  discharge  the  accused  from  further 
liability  under  the  indictment,  an  account  of  some  material  defect 
apparent  on  the  record.  This  defect  must  be  one  which  would 
invalidate  the  entire  proceedings,  —  such  as  repugnancy  in  the 
indictment,  or  a  variance  between  the  indictment  and  the  ver- 
dict. On  this  motion  no  new  trial  can  be  granted,  but  the  whole 
proceedings  may  be  dismissed  and  the  defendant  be  released; 
leaving  him  liable,  however,  to  a  subsequent  prosecution. 

Rem.  Where  a  new  trial  is  granted  it  is  held  upon  the  same 
indictment,  but  a  new  venire  issues  and  another  jury  is  impan- 
elled; and  the  trial  is  conducted  in  the  same  manner  as  if  no 
previous  trial  had  occurred.  If  the  mistakes  arising  in  the  former 
trial,  and  on  account  of  which  the  new  trial  has  been  ordered, 
seem  to  the  court  to  be  inevitable  and  likely  to  defeat  any  ver- 
dict of  guilty  that  could  hereafter  be  obtained  the  case  with  the 
consent  of  tlae  accused  may  be  dismissed,  and  a  nolle  prosequi  be 
entered  on  the  record. 


§§  613,  614  CRIMINAL   PROCEDURE  689 

Read:  4  Bl.  Com.,  pp.  375,  376; 

Archbold,  Criminal  Procedure,  pp.  316-318,  572-577; 

Heard,  Criminal  Pleading,  pp.  316-319; 

Wharton,  Criminal  Pleading,  §§  383,  384,  759-768,  784-902; 

Rapalje,  Criminal  Procedure,  §§221,  379-382,  394-447,  478-510; 

Clark,  Criminal  Procedure,  §§  54,  186,  189; 

1  Bishop,  Criminal  Procedure,  §§  1263-1288,  1387-1396; 

Abbott,  Criminal  Brief,  pp.  195-198,  734-740; 

Hochheimer,  Crimes  and  Criminal  Procedure,  §§  152,  183,  184; 

Rice,  Criminal  Evidence,  §§  170-185. 


§  613.     Of  the  Judgment  or  Sentence. 

If  neither  of  the  fore'going  motions  is  made,  or  if  being  made 
it  is  overruled,  the  court  proceeds  to  judgment.  The  judgment 
is  an  order  of  the  court  directing  the  kind  and  measure  of  the 
penalty  to  be  inflicted  on  the  accused.  It  must  be  pronounced 
in  open  court,  and  must  conform  to  the  law  which  prescribes  the 
punishment.  If  the  crime  is  a  felony,  or  if  the  penalty  involves 
corporal  punishment,  the  defendant  must  be  in  court  to  receive 
the  sentence.  When  the  defendant  stands  convicted  of  more 
than  one  offence,  on  all  of  which  judgment  is  to  be  delivered, 
the  sentence  may  provide  that  the  execution  of  the  judgments 
shall  take  effect  successively,  one  beginning  after  the  other  is 
completed. 

Rem.  The  court  has  power  over  the  judgment  after  it  has 
been  announced,  and  may  respite  or  suspend  its  execution  for  any 
reasonable  cause.  It  may  also  correct  or  change  the  judgment  at 
any  time  during  the  same  term  of  the  court,  and  before  the  execu- 
tion of  the  judgment  has  !)een  commenced. 

Read:  4  Bl.  Com.,  pp.  37r>-3S9; 

Archbold,  Criminal  Procedure,  pp.  577-593; 

Wharton,  Criminal  Pleading,  §§  S2,  905-946; 

Rapalje,  Criminal  Proroduro,  §§  3S;i-393; 

Clark,  Criminal  Procedure,  §§  187,  188; 

1  Bishop,  Criminal  Procedure,  §§  1289-1333; 

Abbott,  Criminal  Brief,  pp.  740-753; 

Hochheimer,  Crimes  and  Criminal  Procedure,  §§  185-188,  194,  195. 


§  614.     Of  the  Writ  of  Error:  Petition  for  Pardon. 

There  arc  two  methods  by  which,  even  after  judgment,  the 
accused   may  be  relieved   from   the  injurious  consequences  of 

44 


690  ELEMENTARY  LAW  §  614 

any  error  or  mistake  in  the  proceedings.  These  are  (1)  A  writ 
of  error;  and  (2)  A  petition  for  pardon.  A  v>rit  of  error 
may  be  brought,  as  a  matter  of  right,  for  any  mistake  of  law  ap- 
parent on  the  record.  The  record  exhibits  all  the  regular  pro- 
ceedings of  the  court,  together  with  the  bill  of  exceptions;  and 
if  the  defendant  has  taken  the  precaution  to  object  to  all  the 
mistakes  and  misconduct  of  the  judge,  the  jury,  the  prosecutor, 
and  other  officers,  which  may  have  prejudiced  his  rights,  and  to 
have  his  objections  noted  and  properly  incorporated  into  the  bill 
of  exceptions,  there  will  be  no  substantial  errors  which  he  can- 
not bring  before  the  court  of  errors  for  final  review.  Mere  formal 
mistakes  are  cured  by  the  verdict,  unless  they  were  made  the 
subjects  of  a  demurrer,  motion  to  quash,  or  plea  in  abatement, 
and  an  exception  was  noted  to  the  adverse  ruling  of  the  court 
thereorii.  When  a  judgment  is  reversed  upon  a  writ  of  error  the 
proceedings  are  invalidated  from  that  stage  at  which  the  first 
error  occurred,  and  unless  wholly  abandoned  must  be  begun 
anew  at  that  point  of  departure.  A  petition  for  pardon  is  ad- 
dressed by  the  defendant  to  the  executive  or  other  pardoning 
power,  and  may  urge  any  matter  of  fact  or  law  in  its  support. 
It  may  be  brought  at  any  time  after  judgment,  and  the  pardon, 
if  granted,  may  be  complete  or  partial,  absolute  or  conditional. 

Rem.  A  common  ground  for  pardon  is  the  assistance  afforded 
to  the  government  in  convicting  an  offender  by  an  accomplice  who 
has  turned  State's  evidence.  There  is  no  rule  of  law  which  secures 
to  such  an  accomplice  an  immunity  from  the  consequences  of 
his  own  guilt,  thus  offering  a  positive  reward  for  treachery  and 
perjury;  but  at  the  same  time  it  is  an  accepted  doctrine  of  the 
courts  that  one,  who  honestly  and  truthfully  discloses  facts  which 
lead  to  the  detection  and  punishment  of  crime,  is  entitled  to  some 
consideration,  even  though  he  himself  participated  in  the  offence. 
This  consideration  may  be  manifested  either  by  a  ?iolle  of  the  case 
against  him,  or  by  a  milder  sentence,  or  by  a  complete  or  partial 
pardon. 

Read:  4  Bl.  Com.,  pp.  329-331,  390-393,  396-402; 
Archbold,  Criminal  Procedure,  pp.  615-629; 
Heard,  Criminal  Pleading,  pp.  328-341 ; 
Wharton,  Criminal  Pleading,  §§  770-783; 
Rapalje,  Criminal  Procedure,  §§  448-458; 
Clark,  Criminal  Procedure,  §  190; 
1  Bishop,  Criminal  Procedure,  §§  1340-1381; 

Hochheimer,  Crimes  and  Criminal  Procedure,  §§  196-200,  221-223; 
Rice,  Criminal  E\adence,  §  186. 


§§  615,  616  CRIMINAL  PROCEDURE  691 

§  616.     Of  Execution. 

Execution  is  the  infliction  upon  the  offender  of  the  punish- 
ment imposed  and  ordered  by  the  court.  Where  the  punishment 
is  a  fine  the  court,  in  its  judgment,  directs  that  the  defend- 
ant stand  committed  till  the  fine  is  paid;  and  thereupon,  in 
default  of  payment,  a  mittimuf  vvdll  issue  under  which  the  de- 
fendant will  be  imprisoned  till  he  pays  the  fine  or  is  discharged 
by  due  course  of  law.  When  the  penalty  is  imprisonment  he 
will  be  confined,  under  a  mittimus,  during  the  period  specified 
in  the  judgment. 

Rem.  In  both  these  penalties  the  precept  of  the  mittimus 
must  be  strictly  obeyed.  It  must  be  served  only  by  the  persons 
to  whom  it  is  directed;  the  confinement  must  be  in  the  place 
and  manner  specified;  and  at  the  end  of  the  term  of  imprison- 
ment the  defendant  must  be  released.  Any  violation  of  these 
provisions  will  subject  the  wrongdoer  to  an  action  for  false 
imprisonment. 

Read:  Archbold,  Criminal  Procedure,  pp.  630-635,  831-833; 
1  Bishop,  Criminal  Procedure,  §§  1335-1339. 

§  616.     Of    Stay    of    Execution    in    Capital    Cases:     Pregnancy; 
Insanity. 

In  capital  cases  there  are  two  causes  which  operate  to  delay 
or  prevent  the  execution.  When  a  woman  is  sentenced  to  death 
while  pregnant,  or  becomes  pregnant  after  such  a  sentence,  the 
court  by  which  the  sentence  was  pronounced,  upon  suggestion 
of  the  pregnancy,  will  cause  an  investigation  to  be  made,  and  if 
tlie  pregnancy  is  proved  will  stay  the  execution  of  the  sentence 
till  the  child  is  born.  When  a  person  under  sentence  of  death 
becomes  insane,  or  where  the  fact  of  his  insanity  is  first  made 
aj)parent  after  sentence,  the  execution  will  be  stayed  till  his 
rcccjvery. 

Rem.  It  has  sometimes  been  held  that  if,  after  the  birth  of 
one  child  under  a  stay  of  execution,  the  woman  becomes  pregnant 
a  .second  time  no  furtlier  stay  of  execution  will  be  granted.  But 
it  may  well  be  doubted  wlietiier  the  enforcement  of  such  a  rule 
would  now  be  tolerated  by  th(>  public.  The  stay  of  execution  in 
tiie  first  pregnancy  is  allowed  not  for  the  sake  of  the  mother  but 
for  that  of  the  child,  and  the  same  reasons  exist  in  the  second, 


692  ELEMENTARY   LAW  §  617 

while  the  only  disadvantage  to  the  State  from  the  delay  is  the 
slight  inconvenience  caused  by  the  detention  of  the  woman  in 
confinement  until  she  is  delivered. 

Read:  4  Bl.  Com.,  pp.  394-396; 

Archbold,  Criminal  Procedure,  p.  635; 
Hochheimer,  Crimes  and  Criminal  Procedure,  §  193. 


§  617.     Of  Execution  in  Capital  Cases. 

Execution  in  capital  cases  is  performed  in  pursuance  of  a 
warrant,  issuing  from  the  court  in  which  the  judgment  was  pro- 
nounced, or  from  some  other  lawful  authority,  and  directed  to 
the  sheriff  of  the  county  or  some  other  proper  officer,  command- 
ing him  to  inflict  the  death  penalty  upon  the  offender  at  or 
within  a  specified  time,  and  in  the  manner  provided  by  law. 
This  warrant  will  protect  only  those  to  whom  it  is  directed,  and 
will  protect  them  only  when  they  strictly  follow  its  commands. 
The  warrant  must  be  fully  executed;  and  if  through  any  acci- 
dent or  mistake  in  the  attempted  execution  death  should  not 
occur,  and  the  offender  should  revive,  the  execution  must  be 
repeated  until  life  is  actually  extinct. 

Rem.  If  an  unauthorized  person  takes  it  upon  himself  to  exe- 
cute a  death-warrant,  he  will  be  guilty  of  murder.  If  the  au- 
thorized officer  executes  it  in  an  unauthorized  manner,  —  as  by 
changing  the  mode  of  death,  —  he  will  be  guilty  of  manslaughter, 
but  if  he  acted  from  malice  his  crime  would  be  murder. 

Read:  4  Bl.  Com.,  pp.  403-406. 


I 


INDEX 


INDEX 

[The  references  are  to  sections] 

Abandonment,  title  by 117 

of  insured  property  to  insurer 390 

Abatement,  as  a  wrong  against  real  property 211 

of  nuisance 241 

is  necessary  when 469 

of  suit,  by  death      293-298 

plea  in       308 

effect  of  judgment  on 308 

in  criminal  cases 599 

Abduction,  as  a  crime 546 

of  child       225 

servant 229 

ward 227 

wife 223 

Abortion,  as  a  crime 505 

Absolute  Estates 90-94 

"  Absque  Hoc  " 303 

"Absque  Tali  Causa  " 330 

Abusive  Language,  as  a  crime 499 

Accessaries,  after  the  fact 481 

before  the  fact 480 

Accession,  title  by 153 

Accident,  defined 468 

may  be  in  the  act  or  in  the  consequences 468 

may  show  absence  of  intent      468 

when  an  act  is  accidental 468 

when  an  act  is  intended  and  the  consequences  are 

accidental 468 

when  a  defence  in  criminal  cases 468 

"  Accident  and  Mistakk,"  in  equity 354,  355 

Accomplice,  may  be  a  witness 608 

Accord  and  Satisfaction,  as  a  defence 283 

remedy 243 

Account,  action  of 258 

equity  jurisdiction  over      350 

special  defences  in 285 

pleas  in 316 

when  remedy  mvist  be  sought  in  equity  .    .    .  258 

Account  Books,  entries  in  as  evidence 330 

Account  Stated 159 


696  INDEX 

[The  references  are  to  sections] 

Accretion,  title  by 116 

Accuracy,  in  pleadings 305 

Accused,  character  not  attacked  when      608 

confessions  of,  may  be  proved 608 

cross-examined  if  testifying 608 

must  plead  in  person  when 596 

be  present  at  trial  when 596,  607 

right  to  be  present  at  trial 607 

confronted  with  witnesses 607 

copy  of  indictment      607 

list  of  witnesses 607 

presence  of  judge  in  court      607 

released  on  bail  is  in  custody  of  sureties 588 

treatment  of,  while  in  custody 589,  607 

Act,  no  crime  without  the  criminal  intent 463 

of  arrest,  what  is 585 

Act  of  Enrolment      74 

Act  of  Mortmain      74 

Act  12,  Chas.  II,  abolishing  feudal  tenures 90 

Action,  begins  when  process  is  served 299 

when  properly  instituted 279 

wlien  not  properly  instituted,  is  good  defence 279 

Actionable  Per  Se 205 

Actions  in  Admiralty  Courts 393-400 

in  personam  and  in  rem 250,  393 

parties  to 394 

joinder  of  actions  in      394 

libel  in,  form  and  contents  of 395 

amendments  to 395 

process  and  service  in 396 

sale  of  perishable  property  in      396 

attachment  of  property  in 396 

bail  of  parties  in 396 

stipulations  of  parties  in 396 

appearance  of  parties  in   . 397 

default  of 397 

judgment  pro  confesso  for       397 

intervenors  in 397 

pleadings  in,  answer,  exceptions,  etc 398 

counter-claim,  cross-libel,  etc 398 

trial,  judgment,  decree,  appeal,  etc 399 

execution,  fieri  facias,  etc 400 

Limited  Liability  Acts  in 387,  400 

Actions  in  Courts  of  Common  Law 252-347 

ancient  forms  of 252 

ex  contractu,  ex  delicto 253 

real,  personal,  mixed 253 

alternate,  concurrent,  election  of 275 

division  of,  joinder  of,  consolidation  of 276 

parties  to 293-298 

procedure  in 299-347 


INDEX  697 
[The  references  are  to  sections] 

Actions  in  Courts  of  Common  Law  —  Continued. 

process,  service,  and  return 299 

appearance  and  bail 300 

pleadings  in 301-325 

purpose,  classes,  order      301 

contents,  demurrers 302 

traverses 303 

confession  and  avoidance 304 

verbal  expression  of      305 

interpretation  of 306 

to  the  jurisdiction 307 

in  abatement      308 

to  the  merits,  declaration 309 

pleas  in  bar 310 

general  issue 310 

justification 311 

discharge 311 

replication,  rejoinder,  etc.  .     301.  312 

in  assumpsit 313 

debt 314 

covenant-broken 315 

account 316 

trespass 317 

trespass  on  the  case 318 

trover 319 

replevin 320 

detinue 321 

disseisin,  ejectment 322 

extraordinary  actions,  etc.  .    .  323 

under  the  New  Procedure 324 

Code  Pleading 324 

the  final  issue 325 

trial 325 

jury,  challenges,  order  of  trial 325,  326 

evidence 327-.341 

material  and  relevant  evidence 328 

confidential  communications 329 

hearsay 330 

best  evidence 331 

fictions  and  presumptions 332 

oral  and  written  evidence 333 

production  of  the  evidence 334-340 

facts  judicially  noticed 334 

inspection  of  objects 335 

documentary  evidence 336 

testimony  of  witnesses      ....     337-340 

competency  of  witnesses  ....  337 

examination  of  witnesses      .    .    .  338 

depositions 339 

contradiction   and    impeachment 

of  witnesses 340 


698  INDEX 

[The  references  are  to  sections] 

Actions  in  Courts  of  Common  Law  —  Continued. 

motion  for  nonsuit 341 

demurrer  to  evidence 341 

charge  to  jury      342 

deliberations  and  verdict  of  jury 343 

stay  of  judgment 344 

motion  in  arrest,  for  new  trial,  etc 344 

judgment 345 

stay  of  execution,  audita  querela,  appeal,  writ  of 

error 346 

execution 347 

Actions,  Civil 250 

forms  of 252 

in  personam  and  in  rem 250,  393 

of  account 258 

assumpsit 255 

covenant-broken 257 

debt 256 

detinue 263 

disseisin      254 

ejectment 254 

replevin 262 

trespass 259 

damages  in 259 

de  bonis      259 

per  quod 259 

quare  clausum 259 

vi  et  arm,is 259 

who  may  bring 259 

trespass  on  the  case      260 

trover 261 

on  statutes      274 

subject-matter  of 250 

parties  to 293-298 

under  New  Procedure 298 

plaintiffs  in 293,  295 

defendants  in 294,  296 

Actions,  Emergency 264-269 

Actions  Qui  Tarn 274 

Actor,  liable  for  proximate  consequences  of  act      198 

Actus  non  facit  reum  nisi  mens  sit  rea 463 

Adequate  Relief,  when  obtainable  in  equity 351 

Adhering  to  the  Enemy 488 

Administration  on  Estates       401-403 

of  living  persons 403 

Administration  of  Government,  crimes  against 494 

Administrators,  classes  of 404 

ad  colligendum 404 

cum  testamento  annexo 404 

de  bonis  non 404 

pendente  lite 404 


INDEX  699 

[The  references  are  to  sections] 

Administrators  —  Continued. 

durante  absentia 404 

minoritate 404 

next  of  kin 404 

title  of 149,  151 

Admiralty  Courts,  jurisdiction  of 248,  377,  378 

marine  contracts  and  torts 378,  391 

Admissions  against  Interest 330 

Adopted  Child 178 

Adopted  Citizens      423 

of  the  United  States 424 

Adult  Children,  support  of  by  parents 182 

duty  to  support  parents 182 

Adultery,  as  a  crime 505 

Advancement  to  Child 361 

Adverse  Possession,  title  by      120 

Advowson 60 

Affections  of  Husband,  alienation  of 224 

Wife,  alienation  of 223 

Affirmative,  in  pleading  and  argument,  who  has 325 

Affrays 499 

Age  of  Consent,  in  sexual  crimes 544 

Age  of  Reason 465 

Agency,  contracts  of 165 

Agents,  wrongs  committed  by 235 

Aggravation,  matter  of 309 

Aiding  and  Abetting 479 

Air  and  Light,  right  to 67 

Alien,  defined 422 

resident,  rights  and  duties  of 426,  427,  430,  439 

when  capable  of  treason 491 

Alienating  Affections,  of  husband  or  wife 223,  224 

Alimony,  title  of  divorced  wife  to 151,  173 

Allegiance,  natural,  local 422 

Alliance  of  States 432 

Allodial  Estates 90 

Alluvion 116 

Alternate  Actions      275 

Alternate  Rights,  election  between 361 

Alternate  Writs 265 

Ambassadors  and  Diplomatic  Agents,  crimes  against     ....  484 

not  subject  to  local  law  582 

rights  and  duties  of    .    .  438 

Ambiguity,  in  pleadings 305 

Amendments,  in  pleadings 344 

in  criminal  cases 600 

equity 372 

to  shorten  them 312 

Amnesty,  when  proper 603 

Ancient  Deeds,  as  evidence 33i 


700  INDEX 

[The  references  are  to  sections] 

Ancillary  Administration 402-405 

Probate      402-405 

Animals,  dangerous,  keeping  when  a  crime 509 

Ferce  NaturcE,  not  property  when 43,  143,  152 

progeny  of,  title  to 153 

wrongs  committed  by 235 

Annexation,  defined 56 

Annuities 62 

Antenuptial  Settlements 84 

Answer,  in  equity  pleadings 372 

Appeal,  in  civil  cases 346 

Appearance  in  Court,  general  or  special 300,  370 

judgment  for  default  of      300,  370 

of  accused 588 

attorney  for  clients 300 

both  parties 300 

parties  in  person 300,  370 

when  necessarj' 300 

in  admiralty  suits 397 

equity 370 

Appointment,  Power  of 100 

Appraisal  of  Probate  Estates 405 

Apprentices 190 

Aquatic  Rights 68 

Aqueduct 68 

Arbitration  and  Award,  as  a  defence 283 

means  of  preventing  war  ....     444 

remedy 244 

Argumentativeness,  in  pleading 305 

Arguments  of  Counsel,  in  civil  cases      325,  326 

criminal  cases 609 

judge  must  control 609 

Aristocracy,  government  of 416 

Armies  in  Transit  through  Foreign  Country 433,  582 

Arms  Carrying,  when  a  crime 501 

Arraignment 596 

Arrest,  act  of 585 

on  extradition,  requisition,  etc. 586 

by  hue  and  cry 584 

warrant 583 

without  warrant      584 

of  body  when  allowed  in  civil  actions 299 

of  judgment 344 

in  criminal  cases 612 

Arrested  Person,  duty  to  submit 585 

right  of  to  bail  and  counsel 589 

consult  with  friends 589 

treatment  of 589,  607 

Arson,  the  burning 554 

dwelling  of  another 555 

Asportation,  of  personal  property 217 


INDEX  701 

[The  references  are  to  sections] 

Assault,  as  a  private  wrong 201,  542 

as  a  crime       542 

with  specific  intent 543 

Assessment  of  Benefits,  not  a  tax 427 

Assignee  of  Chose  in  Action,  in  equity     359 

takes  subject  to  claims     .    .     168,  359 

suit  by 293,  295 

Assignment,  of  chose  in  action       163,  168 

of  right  of  entry  on  breach  of  condition 91 

deed  of 130 

Assumpsit,  action  of      255 

a  concurrent  remedy  with  debt 256 

special  defences  in 284 

pleas  in       313 

Attachment,  as  civil  process  in  common  law  actions 299 

in  admiralty  suits      396 

of  choses  in  action 271 

Attempt,  as  a  crime 574 

of  an  act  known  to  be  impossible      543,  574 

Attorney  in  Fact,  rights  and  duties  of 165 

deed,  how  signed  by 132 

Attorney  at  Law,  rights  and  duties  of 165 

appearance  in  court  by 300 

for  accused,  how  provided  and  paid    ....     597 

Auctioneers,  rights  and  duties  of     165 

Avdita  Querela 346 

Autrefois  Acquit 602 

Convict 602 

Auxiliary  Actions 270-273 

special  pleas  in 323 

Avowry,  in  replevin 320 

Avulsion 116 

Award,  of  arbitrators 244,  283 

equity  jurisdiction  over 366 

Bail,  right  to      40,  299,  588,  589 

to  the  officer 299 

special,  to  the  action 300 

in  actions  in  admiralty 396 

in  criminal  cases 588,  589 

its  form,  amount,  forfeiture,  etc.*   ....     588 

excessive,  unlawful 588 

collection  of,  does  not  prevent  prosecution     588 

Bailee,  cannot  steal  from  owner 563 

Bailment,  contracts  of 164 

Bailor,  may  reclaim  misused  property      148 

Bailpiece,  rights  of  sureties  under 588 

Balance  of  Power 441 

Bankrupt  Estates,  settlement  of 406 

Bankruptcy,  involuntary,  effect  on  land 123 

title  of  assignee 151,  406 


702  INDEX 

[The  references  are  to  sections] 

Bargain  and  Sale,  deed  of 130 

Barratry 521 

Base  Fee 93 

Battery      202,  541 

of  child 225 

master 230 

servant 229 

ward 227 

wife 223 

Bawdy-House,  keeping  a 502 

Belligerent  Rights,  concession  of  by  parent  State 442 

foreign  States 442 

Belligerent  States,  legal  enemies 446 

not  personal  enemies 446 

peaceful  intercourse  between 452 

Bench  Warrant 596 

Benefice 60 

Best  Evidence      331 

Bestiality 505 

Bigamy 504 

Bill  in  Equity,  original,  supplemental,  etc 368 

parties  to 369 

when  multifarious* 368 

Bill  of  Exceptions     273 

Lading      387 

assignment  of ,  387 

Particulars 309 

Peace 350 

Review 375 

Revivor 272 

Bills  and  Notes      169 

Blasphemy      503 

Blockades 458 

Body,  defined      32 

Bona  Fide  Purchaser,  rights  of 360 

against  voluntary  and  fraudulent 

conveyances 136 

Bond,  to  keep  the  peace 578 

and  release  of  attached  property 299 

Bonds  of  Foreign  States,  forgery  of 484 

Bottomry  Boi^d 382 

Boycotting 208,  552 

Breaking,  in  burglary 556 

Breach  of  Condition,  entry  on 91 

Contract,  as  a  wrong  against  property    ....      199,  220 
Neutrality,  by  vessels  or  persons  does  not  involve  the 

State 459 

Trust 197 

Bribery 515 

Bridges 63 

Brokers,  rights  and  duties 165 


INDEX  703 

[The  references  are  to  sections] 

Buggery 505 

Builder  of  Vessel,  prima  facie  owner 380 

Buildings,  support  of  by  adjoining  buildings 64 

Burden  of  Proof,  in  civil  actions 325 

critninal  cases 604,  608 

reference  to  sanity      466 

Burglary,  the  breaking  and  entering 556 

dwelling  house 557 

night  season 558 

felonious  intent 559 

in  statutory  burglary 560 

Burial  Rights 66 

Burning,  in  arson      554 

unlawful  when      554 

Business,  right  to  engage  in 39,  208,  552 

Cancellation  of  Documents,  in  equity 354 

Cannon  Shot  from  Shore 433 

Capias  ad  Respondendum 299 

Satisfaciendum      347 

Capital  Cases,  evidence  must  equal  that  of  two  witnesses    .    .    .  608 

execution  in 617 

in  unlawful  manner  is  manslaughter  617 

Capitulation 452 

Capture  of  Belligerent  Property 450 

ransom  of,  treatment  of     .  450 

Captured  Property,  ownership  of 147 

at  sea,  proceedings  as  to 392 

Cargo,  defined 387 

carriage,  custody,  and  discharge  of 387 

Carriers,  Common 164,  387 

Carriers  by  Water,  common,  private      387 

Carrying  Arms,  right  of 501 

Care  of  Arrested  Person 589,  607 

Case,  action  on  the 260 

special  defences  in 287 

pleas  in 318 

Cattle,  damage  feasant 242 

straying,  ownership  of 147 

Causal  Relation,  between  damnum  and  injuria 198 

homicidal  act  and  death 527 

Cause  of  Action,  exists  when 279 

not  divisible      276 

Causes  and  Consequences,  relation  of 198,  468 

Causes  of  War 444,  445 

Cemeteries 66 

Certainty  in  Pleadings 308 

to  a  common  intent 308 

certain  intent  in  general 308 

every  particular 308 

Certiorari 273 


704  INDEX 

[The  references  are  to  sections] 

Cession,  title  by 436 

Challenges  to  the  Grand  Jury 592 

Jury,  in  civil  cases 326 

criminal  cases      606 

Challenging,  as  a  crime      499 

Champerty      523 

Changes  in  the  Law,  effect  of 19 

Charge  to  the  Jury,  in  civil  cases 342 

criminal  cases 610 

Charitable  Uses      357 

Charter,  of  corporation 24 

Charter-Party      381 

Chastity  of  Husband,  wife  has  no  legal  right  to 224 

Wife,  husband  has  legal  right  to 177,  223 

Chattels  Personal      140 

Chattels  Real 70,  140 

Cheating,  as  a  crime 506 

Child,  abduction  of 225 

adopted 178 

battery  of 225 

damages  for  injury  to 225 

injury  of  by  parent 233 

by  to  parent 234 

legitimate,  illegitimate 178 

liability  of,  for  contracts  and  torts 181 

right  of,  to  safety  of  parent 181 

seduction  of 225 

unborn,  rights  of 31 

when  subject  of  homicide 31 

when  liable  for  parent's  support 182 

Child-Stealing      551 

Choses  in  Action,  defined 141 

assignment  of 163,  168,  359 

created  by  contract 220 

theft  of 562 

Choses  in  Possession 141 

Church,  burglary  in  a 560 

Circuit  Court  of  Appeals      248 

Circuit  Courts  of  the  United  States 248 

Circumstantial  Evidence 327 

in  criminal  cases,  weight  of     ....  608 

Citizen,  defined      422,  423 

by  birth  or  adoption 423 

duty  of  to  State      426,  427 

State  must  avenge      430 

protect 429 

Citizens  of  the  States  of  the  American  Union     ......  425 

Citizens  op  the  United  States,  who  are 424 

by  birth,  by  naturalization   .    .  424 

Civil  Actions 250-347 

forms  of  in  common  law  courts 252 


INDEX  705 

[The  references  are  to  sections] 

Civil  Actions  —  Continued. 

jurisdiction  of  civil  courts  over 251,  307 

procedure  in 299-347 

Civil  Courts 248 

Civil  Damage  Laws      195,  224,  226 

Civil  Death 31 

Claim,  indivisible  when 276 

Classification  of  Crimes 482 

Clergymen,  evidence  of,  when  excluded 329 

Clerk  of  Court,  duties  of 248 

Client,  e\'idence  of,  when  excluded 329 

Clothing  of  Children,  belongs  to  whom 563 

Cloud  on  Title,  removal  of 366 

Code,  defined 14 

ancient  and  modem  codes 14 

Code  Pleading 292,  324 

special  pleas  in 292,  324 

Code  Systems,  characteristics  of 14 

Cognizance,  in  replevin 320 

Collateral  Limitation 93 

Collisions  of  Vessels,  damages  how  estimated 386 

Collusive  Suits 300 

Combatants  and  Non-Combatants,  in  war 446 

CoiHTY  OF  States 18 

Commencement  of  Action,  is  when  process  is  served 299 

Commissioners  to  other  Nations,  rights  and  duties  of    ...    .  439 

Commitment,  in  criminal  cases 587 

Common,  defined 59 

Common,  estates  in 108 

Common  Bail,  in  civil  actions,  when  taken 299 

Common  Barrator,  defined 521 

Common  Carrier,  defined,  rights  and  duties  of 164,  387 

Common  Law,  defined 5 

Common  Law  Actions,  history  of 252 

Common  Law  Courts 248 

Common  Law  Crimes 477 

Common  Law  Lien 247 

Communication,  Privileged,  defined 204 

Commutation  of  Skntf-nce 603 

Companies,  Unincorporated 23 

Compensatory  Rf.mediks 237 

Competent  Tribunal,  defined 519 

Competition  in  Trade,  crimes  against      507,  552 

"Complaint,"  filed  when  and  where  in  criminal  cases 590 

Completeness,  in  pleadings 305 

Compounding  Offences 513 

Compulsion,  as  a  defence  in  criminal  cases 470 

may  show  want  of  criminal  intent 470 

may  be  actual  or  pn^sumed 470 

by  imlawfvil  force 470 

husband  and  wife 470 


706  INDEX 

[The  rofereuces  are  to  sections] 

Concealed  Weapons^  carrying,  a  crime 501 

Conciseness,  in  pleadings 305 

Conclusion,  in  deeds 131 

Concurrent  Actions 275 

Condition,  expressed 90 

implied 90 

in  law 93 

precedent 90 

subsequent      90 

Conditional  Estates 90-94 

entry  on 91 

Conditional  Fees 79 

Conditional  Limitation      93,  94 

Conditions,  in  deeds 131 

fulfilment  and  breach  of 91 

Condonation,  by  State,  a  defence      474 

victim,  no  excuse 32,  202,  474 

Confession  and  Avoidance 304 

Confession,  judgment  on 345 

Confessions 330 

of  accused,  may  be  proved 608 

Confidential  Communications      329 

between  counsel  and  client 329 

husband  and  wife 329 

to  physicians  and  clergymen 329 

public  officers 329 

which  expose  one  to  prosecution 329 

with  persons  now  deceased 329 

Confirmation,  deed  of 130 

Confiscation  of  Property,  in  punishment  for  crime 577 

Conflict  of  Laws 18 

Conflicting  Creditors,  rights  of,  how  adjusted 363 

Confusion,  title  by 154 

Congress  of  the  United  States,  powers  of 417 

Conquest,  effect  of 453 

title  by 436 

Consanguinity,  degrees  of 113 

lineal,  collateral 113 

Consent  of  Victim,  no  excuse  for  crime 32,  202,  474 

Consequences  of  Act,  responsibility  for      198 

Consideration  of  Contracts 158 

Consolidation  of  Actions      276 

Conspiracies  against  Trade  and  Labor 208,  552 

Conspiracy,  as  a  civil  injury 197 

crime 552,  575 

declarations  and  acts  of  co-conspirators,  provable    .  608 

Constitution,  defined 12 

a  grant  of  governmental  powers 412 

limitation  of  popular  powers      412 

how  framed  and  expressed 12 


INDEX  707 

[The  references  are  to  sections] 

CoNSTlTTTTiON  —  Continued. 

of  individual  American  States 12 

limits  popular  powers 12 

the  United  States 12 

confers  complete  external  soverei^ty  ...     413 
internal  sovereignty    ...      414 

grants  governmental  powers 12 

CoNSTiTTJTiONAL  GOVERNMENT,  origin  and  nature  of 412 

cannot  limit  ultimate  power  of  people     .     412 

in  England  and  America 412 

Constitutional  Law 412,  416-430 

Construction,  of  contracts 161 

pleadings      306 

wills 139 

Constructive  Possession 141 

Consuls,  rights  and  duties  of 439 

Contempt  of  Court,  as  a  crime      249,  494 

enforced  by  scire  facias 272 

in  equity 376 

Contempt  of  Legislatures,  as  a  crime 494 

Contingent  Remainders 97,  99 

Contingent  Uses 100 

Continuando,  in  declarations 309 

indictments 593 

Contraband  Goods,  title  to 148,  450,  457 

Contraband  of  War 450 

Contract,  capacity  to  make 39,  158 

consideration  of 158 

construction  of 161 

executed  or  executory 162 

express  or  implied 159 

how  broken      220 

interpreted  by  lex  loci  actus 161 

contractu 161 

pacti 161 

ret  sitw 161 

solutionis 161 

malicious  interference  with 208,  221,  507,  552 

merged  in  judgment 162,  283 

obligations  of       19 

oral  or  written 160 

parties  to 158 

performance  of 162,  352 

in  part 160,  162 

relea.><c  from 162 

tender  of 162 

quasi 159 

proposal  and  acceptance  in 158 

rescission  of 161,  162,  353 

reformation  of 162 

simple  or  special 160 


708  INDEX 

[The  references  are  to  sections] 

Contract  —  Continued. 

specific  performance  of 352 

title  by 158-170 

under  Statute  of  Frauds 160 

vacated  by  fraud 353 

Contracts,  classes  of 159 

bailment 164 

debt 168 

guaranty  and  suretyship 170 

indorsement      169 

insurance 167 

partnership 166 

sale 163 

service 165 

to  marry        172 

Contracting  Power,  suspended  by  war 446,  447 

Contradiction  of  Witnesses 340 

Contribution  between  Co-sureties,  right  to 170,  362 

equity  jurisdiction  over 350,  362 

Contributory  Negligence,  as  a  defence 281 

Controversy,  necessary  to  action  or  suit     248 

Conversion,  as  a  wrong  against  personal  property 219 

characteristic  intent  in 219 

demand  when  necessary  before  suit 219 

Conveyance  to  Uses 100 

Conveyances,  Voluntary  or  Fraudulent 136 

Coparcenary,  estates  in 107 

Copies,  as  evidence        336 

certified,  examined,  office,  sworn  to,  etc 336 

value  and  weight  of 331 

Copying  Process 271 

Copyrights,  as  property 155 

Coram  non  Judice 248,  251 

CORODIES 60 

Corporate  Duties,  mandamus  to  enforce 265 

Corporations,  defined,  characteristics  of      22,  23 

charter  of 24 

how  interpreted 24 

classes  of 25 

creation  of 24 

de  jure  and  de  facto 24 

death  of 24 

eleemosiynary  and  civil 25 

joint-stock 23 

powers  of      24 

public,  quasi-public,  and  private 25 

quasi 23 

sole  and  aggregate 25 

stock  and  non-stock 25 

wrongs,  committed  by 235 

Corporeal  Property,  defined 26 


INDEX  709 

[The  references  are  to  sections] 

Corporeal  Real  Property,  defined 51-56 

Corpus  Delicti,  defined 538 

must  be  proved 608 

Costs,  in  civil  actions 345,  376 

Costs  and  Penalties,  title  of  victorious  party  to 151 

Co-tenants  of  Personal  Property,  rights  of 145 

Co-tenants  of  Real  Property      103-111 

may  sue  for  property  sold  or  destroyed 261 

occupation  by 110 

partition  between Ill 

repairs  and  improvements  by 110 

Counsel,  when  may  not  testify       329 

Counsel  or  Guardian,  accused  must  have 597 

Counterclaim,  in  admiralty  proceedings 398 

pleadings  under  New  Procedure     ....     292,324 

Counterfeiting,  as  a  crime 494,  570 

and  forgery  distinguished      570 

foreign  coin      484 

Counts,  in  declarations,  joinder  of 309 

indictments,  joinder  of      593 

Court,  defined 248 

composed  of  whom 248 

may  charge  jury 342 

direct  verdict 342 

sit  and  act  when  and  where 248,  251 

powers  of 249 

to  appoint  and  remove  officers 249 

keep  records 249 

make  rules  of  practice 249 

preserve  order 249 

punish  for  contempt  ....    249,  272,  376,  494 

Courts,  classes  of 21,248 

civil  and  criminal 21,248,  578 

Federal  and  State 21,248 

of  admiralty 21,248,377-400 

common  law 21,  248 

equity 21,248 

general  and  limited  jurisdiction      248 

probate 21,248 

record  and  not  of  record      248 

superior  and  inferior  jurisdiction 248 

martial 248 

military 248 

provisional 248 

Courts,  Criminal,  officers  of 578 

Courts  of  Equity 49,  348 

history  of 348 

jurisdiction  of       349-367 

aid  of  judgments  and  awards 366 

suits  at  law 365 

alternate  rights  in  property 361 


710  INDEX 

[The  references  are  to  sections] 
Courts  of  Equity  —  Continued. 

assignments  of  choses  in  action     ....  359 

awards  of  arbitrators 366 

bills  of  interpleader 350 

peace 350 

quia  timet      367 

claims  of  creditors 363,  366 

purchasers 360 

cloud  on  title 366 

contribution  between  co-sureties  .    .     350,  362 

de  bene  esse 365 

discovery       365 

election  between  alternate  rights  ....  361 

estates  of  married  women,  infants,  lunatics  364 

exoneration  of  obligors 362 

injunctions 349 

joint  obligations  and  estates 362 

marshalling  assets 363 

mortgages  and  liens 358 

ne  exeat      365 

partition  of  joint  property 356 

penalties  and  forfeitures 355 

performance  of  contracts 352 

receiverships 363 

rescission  of  contracts 353 

reformation  of  contracts 354 

testimony,  perpetuation  of 365 

trust  estates 357 

useless  litigation,  suppression  of    ...    .  367 

procedure  in 368-376 

bill  in  equity 368 

parties  to 369 

process  and  appearance  in      ...  370 

pleadings  in   disclaimer 371 

demurrer,  pleas  in      ....  371 

answer,  replication  in    .    .    .  372 

trial  in       373 

decree  in 374 

rehearing,  bill  of  review  in 375 

execution  in       376 

Courts  of  Probate,  history  of 401 

jurisdiction  of 401-407 

pleadings  and  procedure  in 408 

trial  and  judgment  in 409 

Courts  of  the  United  States 418 

powers  and  limitations  of 418 

Court  of  Claims 248 

courts  of  the  District  of  Columbia 248 

Covenant,  in  deeds 131 

who  bound  by .  257 

Covenant-Broken,  action  of „    .    .  257 


INDEX  711 

[The  references  are  to  sections] 

Covenant-Broken  —  Continued. 

a  concurrent  remedy  with  debt 257 

special  defences  in 284 

pleas  in 315 

Covenant  to  Stand  Seised,  deed  of 130 

Creation,  title  by     155 

Creditors,  conflicting  rights,  in  equity 363 

rights  against  voluntary  and  fraudulent  conveyances      136 

Creditor's  Bill 366 

Crime,  defined 460 

characteristics  of 462 

general  and  permanent 462 

special  or  universal 462 

does  not  exist  unless  all  characteristics  present 462 

embraces  act  and  intent 463,  464 

how  and  why  forbidden  by  State 460 

intrinsic  nature  of 461 

merger  of 460,  473 

prohibited  by  State  alone 461 

repeal  of  law  forbidding  it  extinguishes  it 461 

rests  on  either  common  law  or  statute      461,  477 

State  constantly  creating  and  repeaUng 461 

to  intend  one  crime  and  commit  another 467 

victims  of 474 

consent  of  no  defence 32,  202,  474 

Crimes,  against  the  administration  of  government 494 

laws  of  all  nations 485 

sovereignty  of  the  State 483-494 

public  welfare 495-523 

peace 496-501 

policy 502-505 

trade 506-507 

health       508-509 

justice 510-523 

persons  of  individuals 524-552 

property  of  individuals 553-572 

classes  of 476,  482 

committed  by  wife  in  presence  of  husband 470 

degrees  of 472 

locality  of 580 

perfect  and  imperfect  distinguished 573 

prosecution  and  punishment  of 475,  577 

Crimes  on  the  Sea,  jurisdiction  over 391 

Criminal  Act,  always  physical 463 

defined  and  prohibited  by  law 463 

law  defining  strictly  construed      463 

may  be  partly  mental 463 

pleadings  must  exactly  describe 595 

Criminal  Assault 542 

Criminal  Conversation,  with  another's  wife 223 

husband      224 


712  INDEX 

[The  references  are  to  sections] 

Criminal  Courts 21,  248,  578 

jurisdiction  of 579-582 

depends  on  locality  of  crime      580 

nature  and  penalty  of  crime     .    .    .  581 

over  person  of  accused,  how  obtained      ....  582 

Criminal  Intent,  defined 464 

not  the  same  as  mental  part  of  criminal  act    .  463 

presumed  by  law  from  act  unless  rebutted  .    .  464 
rebutted  by  proof  of  infancy,  insanity,  mistake 

of  fact,  accident,  necessity,  or  compulsion    .  464 

Criminal  Law  of  the  United  States 581 

Criminal  Libel      500 

Criminal  Procedure 577-617 

Crops,  title  to 55 

Cruel  and  Unusual  Punishments,  forbidden 477 

Curtesy,  estate  by 82 

Custody,  defined 44 

distinguished  from  possession 561 

of  arrested  person 587,  589 

Custom,  defined      9 

how  developed  into  law 9 

Cy  Pres  Doctrine 357 

Damage,  direct  or  consequential 218 

implied  from  breach  of  contract 220 

fraud 218 

negligence 218 

personal  injury      201 

secondary  causes 218 

Damage  Feasant,  distress  for 242 

Damages,  hearing  in 345 

liquidated  and  unliquidated 355 

recoverable  by  child  for  injury  to  parent 226 

guardian  for  injury  to  ward 227 

master  for  injury  to  servant 229 

parent  for  injury  to  child 225 

victorious  plaintiff 151 

Damnum,  absque  injuria 196 

Dams 68 

"Dangers  OF  the  Sea,"  covers  what 387 

Day,  Fractions  of 182 

Daylight,  in  burglary      558 

Dead  Human  Bodies 143 

Death,  Civil      31 

Death,  of  parties,  effect  of  an  action  at  law 293-298 

penalty  of 475,  476,  617 

when  presumed 31 

within  a  year  and  a  day,  in  homicide  ........  527 

De  Bene  Esse 365 

Debt,  action  of 256 

a  concurrent  remedy  with  assumpsit 256 


INDEX  713 

[The  references  are  to  sections] 

Debt  —  Continued. 

action  of,  a  concurrent  remedy  •with  covenant-broken     .    .  257 

special  defences  in 284 

pleas  in 314 

contracts  of 168 

Debt  on  Judgment 314 

action  of      256 

Debt  on  Statutes 314 

Deceased  Persons,  evidence  of  acts  when  excluded 329 

intestate  estates  of,  title  to 149 

Deceit,  as  a  wrong 197 

Declaration,  in  civil  actions,  purpose  and  effect  of 309 

Declaration  of  War 445 

Decree,  in  civil  actions 250 

equity      374 

pro  confesso 374 

Deeds  of  Real  Property,  defined 129 

ancient,  as  evidence 336 

classes  of 130 

indentures  and  deeds  poll     .    .    .  129 

original  and  derivative      ....  130 

conclusion  of      131 

conditions  and  covenants  in    ...    .  131 

consideration  of 129 

contents  of 131 

delivery  of      133 

as  escrow 133 

take  effect  on 133 

descriptions  and  exceptions  in    .    .    .  131 

of  premises 131 

erasures  and  interlineations  in    .    .    .  129 

execution  of 132 

attestation  of 129 

acknowledgment  of     .    .  129 

grantee  estopped  to  claim  under    .    .  135 

grantor  presumed  to  understand  .    .  132 

interpretation  of 134 

language  and  materials  of 129 

nature  of,  determined  by  legal  effect  130 

parties  to 129 

recording  of 129 

reddendum,  habendum,  tenendum  in     .  131 

reformation  and  rescission  of           134,  353 

revocation  of 134 

sealing  of 129,  132 

signature  of 129 

by  attorney  in  fact     .    .  132 

mark  of  grantor     .    .  132 

under  Statute  of  Frauds 129 

Uses 130 

when  voluntary  or  fraudulent    .    .    .  136 


714  INDEX 

[The  references  are  to  sections] 

Deeds  op  Trust 92 

Default,  of  appearance 300 

judgment  by 345 

final  against  defendant 300 

nonsuit  against  plaintiff 300 

Defeasance,  deed  of 130 

Defence,  of  property  by  its  owner 45,  238,  242,  529 

Defences,  in  civil  actions 277-292 

against  the  action  alone        277 

jurisdiction  of  the  court 277,  278 

merits  of  the  action 277 

classes  of,  universal  or  special 277-290 

universal  defences 277-283 

accord  and  satisfaction 283 

action  improperly  instituted 279 

arbitration  and  award 283 

contributory  negligence 281 

equal  fault 281 

estoppel 282 

former  recovery 283 

joint  wrong 281 

release 283 

res  adjtidicata 283 

Statute  of  Limitations 280 

want  of  jurisdiction 278 

special  defences  to  actions 284-291 

in  account 285 

assumpsit 284 

covenant-broken 284 

debt 284 

detinue 289 

disseisin 290 

ejectment 290 

extraordinary  and  auxiliary  and  stat- 
utory actions 291 

replevin      289 

trespass      286 

trespass  on  the  case 287 

trover 288 

under  the  New  Procedure 292,  324 

order  of  presentation  of      277 

Defendant,  in  civil  actions 294,  296-298 

must  be  properly  brought  into  court 279 

Definiteness,  in  pleadings      305 

Definition  Legal,  defined 10 

Deforcement 211 

Degrees  of  Crime 472 

Degrees  of  Murder 531 

De  Injuria  Sua 303 

Delivery,  of  deeds 133 

goods  sold,  actual,  constructive 163 


INDEX  715 
[The  references  are  to  sections] 

Demand  of  Property  Wrongfully  Detained,  when  necessary  .  217, 

219,  261,  262 

Democracy,  government  of 416 

Demurrage 381 

Demurrers  in  civil  cases 302 

admit  the  facts 325 

classes  of,  general,  special 302 

effect  of  judgment  on      302,  325,  345 

forms  of 302 

issues  raised  by 302 

judgment  on      302,  345 

in  criminal  cases 600 

effect  of  judgment  on      600 

in  equity 371 

to  evidence 341 

Departure,  in  pleadings 305 

Depositions 339 

Descent,  title  by 112,  113 

Description,  of  the  accused  by  name,  title,  etc 594 

the  crime,  by  locality,  venue,  date,  etc 594 

criminal  act,  when  forbidden  by  statute    .    .  594 

persons  and  property  injured       595 

parties  in  civil  actions 279 

property  in  deeds,  and  other  papers 131 

Destruction  of  Public  Nuisances 577 

Detention,  of  personal  property 217 

Determinable  Fee 93 

Detinue,  action  of 263 

damages  in 263 

distinguished  from  replevin 263 

execution  in 347 

special  defences  in 289 

pleas  in      321 

Devise,  title  by      137-139 

Devises  Executory 100 

Dignities 61 

Dilatory  Pleas  in  civil  cases 301 

criminal  cases 599 

Diplomatic  Agents,  crimes  against 484 

not  liable  to  suit 293 

rights  and  duties  of 438 

Direct  Evidence 327 

Disagreement  of  Jury,  in  criminal  cases 611 

Discharge  or  Release,  plea  in      311 

Disclaimer,  in  equity  pleadings 371 

Disclaimer  of  Landlord's  Title,  by  tenant 118 

Discontinuance 211 

Discovery,  bill  of 365 

title  by 125,  436 

Disfigurement,  of  person  of  another,  as  a  crime 32,  540 

Disorderly  House,  keeping  a,  as  a  crime 502 


716  INDEX 

[The  references  are  to  sections] 

Disseisee,  heirs  of,  cannot  inherit      75 

may  sue  when  for  timber  removed  by  disseisor    ...  261 

unable  to  convey 75 

wife  of,  has  no  dower 75 

Disseisin 210 

action  of 254 

effect  of  judgment  for  plaintiff  in 254 

mesne  profits  when  recoverable  in 254 

special  defences  in 290 

pleas  in 322 

when  trespass  may  be  treated  as 210,  254 

Disseisor,  improvements  by,  when  cost  of  recoverable      ....  254 

the  legal  owner,  with  seisin,  etc 210 

Distress,  as  a  remedy 242 

for  rent 242 

damage  by  cattle 242 

replevin  for  goods  distrained 262 

Distributees  of  Personal  Property,  in  intestate  estates      .    .  149 

District  Courts  of  the  United  States      248 

Disturbance,  of  common,  franchise,  etc 216 

treated  as  nuisance  when 216 

Disturbing  Meetings 497 

Divine  Law,  defined 1 

Divisible  Contracts 161,  162 

Division  of  Actions 276 

Divorce,  a  vinculo,  a  mensa  et  thoro 173 

alimony  in,  custody  of  children,  etc 173 

by  collusion 173 

power  of  State  to  grant 173 

validity  and  effect  of 173 

Documentary  Evidence 336 

Domestic  Relations .     171-195 

Domicile  of  Persons 22 

test  of  neutrality 455 

Double  Pleading 311 

Doubt,  Reasonable 608 

Dower,  estate  in 83 

ancient  actions  to  protect 253 

estates  in  lieu  of 84 

Drainage,  rights  of 68 

when  a  nuisance 214 

Drunkenness,  no  excuse  for  criminal  act 471,  525,  531 

may  negative  specific  intent 471 

Drunkenness,  Public,  as  a  crime 502 

Duelling,  as  a  crime 499 

Duplicity,  in  indictments 593 

pleadings 305 

Duress 33,  40 

destroys  contracting  power 33,  40,  158 

Dwelling-House,  in  arson      555 

burglary 557 

Dying  Declarations      330,  539,  608 


INDEX  717 

[The  references  are  to  sections] 

Easements,  defined,  classes  of 57 

affirmative  or  negative,  appurtenant  or  in  gross,  con- 
tinuous, non-continuous 57 

creation  and  extinguishment  of      58 

Eaves,  overhanging,  when  a  nuisance 214 

Eaves  and  Spouts 68 

Eavesdropping,  a  crime 502 

Ecclesiastical  Law,  defined 6 

Ejectment,  action  for  mesne  profits  and  improvements     ....  254 

special  defences  in 290 

pleas  in 322 

writ  of  execution  in 347 

Election  op  Actions 275 

between  alternate  rights 361 

Elective  Franchise,  crimes  against 494 

Elegit,  writ  of 92 

Elements,  title  to 43,  143,  152 

Elements  and  Forces  of  Nature 43,  143,  152 

Elopement,  with  consenting  girl,  not  a  crime      546 

Emancipation  of  Child  by  Parent 179,  180 

Embargo 444 

Embezzlement 567 

Emblements 85 

Embracery 520 

Emergency  Actions 264-269 

Eminent  Domain,  exercisable  by  State 427 

title  by 124 

Employers  and  Employees,  rights  and  duties  of 165 

Enemy,  defined,  adhering  to 488 

Engrossing,  as  a  crime 507 

Enrolment  of  Vessels 379 

Entering,  in  burglary 556 

by  consent  or  enticement 556 

Enticement,  by  victim,  no  excuse  for  crime 474 

Entirety,  estates  in      106 

Entry 76,  210 

against  abator  or  intruder 211 

as  a  remedy 240 

forcible,  contrary  to  law 240 

not  against  discontinuance  and  deforcement 211 

on  conditional  estates 91 

right  of,  not  assignable 91 

Envoys 439 

Equal  Fault,  as  a  defence 281 

Equitable  Conversion 26 

rights  under 361 

Equitable  Estates,  seisin  of 73 

Equity,  Courts  of 21,  49,  248,  348-376 

action  for  account  in 258,  350 

decree  of  title  by 123 

history  of 348 


718  INDEX 

[The  references  are  to  sections] 

Equity,  Courts  of  —  Continued. 

jurisdiction  of 348-367 

over  injunctions 349 

multipartite  controversies  .  350 

interpleader 350 

specific  performance    .    .    .  352 

rescission  of  contracts     .    .  353 

reformation  of  contracts     .  354 

penalties  and  forfeitures     .  355 

joint  estates 356 

trusts 357 

mortgages  and  liens    .    .  92,  358, 
assignment    of    choses    in 

action 168,  359 

conflicting  claims  of  pur- 
chasers        360 

alternate  rights  to  property  361 
joint     obligors,      exonera- 
tion, contribution,  subro- 
gation      362 

conflicting  claims  of  credit- 
ors, receivers,  marshal- 
ling assets 363 

married     women,    infants, 

lunatics 364 

in  aid  of  suits  at  law,  discovery, 

perpetuation  of  testimony,  De 

bene  esse,  ne  exeat,  etc.    .    .    .  365 

in  aid  of  judgments  and  awards, 

creditors'-bills,  cloud  on  title, 

etc 366 

to  suppress  useless  litigation  .    .  367 

maxims  of 348 

procedure  in 368-376 

bills  in,  original,  supplemental,  cross,  etc.  368 

parties  in 369 

appearance  in 370 

pleadings  in 371,  372 

disclaimer,  demurrer,  plea,  etc.   .    .  371 

answer,  replication,  etc 372 

trial  in 373 

decree  in 374 

rehearing  in,  bill  of  review 375 

execution  in      376 

Equity  of  Redemption 92,  358 

Error,  writ  of 273,  346 

in  criminal  cases 614 

Escape,  as  a  crime 517 

right  of  prisoner  to 40 

Escheat,  title  by 115 

Escrow,  deed  held  as 133 


INDEX  719 

[The  references  are  to  sections] 

Estates,  defined 47 

concurrent 47 

content  of       47 

legal  and  equitable 49 

principal  and  subordinate 47 

real  and  personal 48 

Estates  in  Personal  Property 142-145 

Estates  in  Probate  Courts 405-407 

settlement  of      405 

solvent  or  insolvent 405 

Estates  in  Real  Property 70-89 

absolute 90 

allodial 90 

at  will      70,  86 

bankrupt 40G 

by  curtesy 82 

statute  merchant,  staple,  elegit 92 

sufferance 89 

executory 100 

feudal,  abolished  by  Act  12  Chas.  II 90 

for  life     70,  80,  85 

during  widowhood 80 

years 70,  88 

from  month  to  month 87 

year  to  year 70,  87 

in  common 108,  111 

coparcenary 107 

dower 83 

lieu  of  dower 84 

enjoyment 95 

entirety      106 

expectancy 95-102 

fee  simple      70,  77,  78 

tail 70,  79 

after  possibility  of  issue  extinct 81 

fyiuro 95-102 

joint  tenancy 105,  111 

mortgage 92 

partnership 109 

possession      95 

remainder,  vested,  contingent 97-99 

reversion 96 

severalty 95 

on  limitation,  on  condition  in  law 93 

per  nuter  vie 80 

upon  condition 90-94 

expressed,  implied,  precedent,  subsequent  ....       90 

originate  in  contract 90 

conditional  limitation 94 

Estoppel,  as  a  defence 282 

rights  arising  by      89 


720  INDEX 

[The  references  are  to  sections] 

Estoppel  —  Continued. 

title  by      119,  126 

Estovers 85 

Eternal  Law,  defined      1 

Etiquette,  between  nations 440 

Evidence,  in  civil  cases 327-341 

special  rules  in  criminal  cases 608 

State  must  prove  its  case  beyond  reasonable  doubt  608 
testimony  must   exclude   every   reasonable    hy- 
pothesis but  that  of  guilt 608 

corpus  delicti  must  be  proved  otherwise  than  by 

the  extra-judicial  admissions  of  accused     .    .  608 

specific  intent  must  be  proved  as  laid 608 

circumstantial  evidence  is  admissible 608 

all  matters   included    in  the  res   gestce  may  be 

shown 608 

acts  and  statements  of  co-conspirators  may  be 

proved 608 

accomplice   may  be  a   witness,   but   should   be 

corroborated 608 

evidence  given  in  former  trial  may  be  presented  608 

confessions  of  accused  may  be  proved 608 

defendant,  if  he  testifies,  may  be  cross-examined  608 
witness    not    obliged   to    disclose    incriminating 

facts 329,  608 

expert  testimony  is  admissible 337,  608 

character   of   accused,    not   attacked,   unless   in 

rebuttal 608 

in  capital  cases  evidence  must  be  equal  to  two 

witnesses 608 

dying  declarations  are  admissible  .    .    .     330,  539,  608 

demurrer  to 341 

documentary 336 

in  equity 373 

on  former  trial  admissible 608 

oral  or  written,  relation  of 333 

presentation  of  to  court 334-340 

by  copies,  examined  and  sworn    ....  336 

exemplifications 336 

office  copies,  certified  copies 336 

private  writings 336 

public  records 336 

Ex  Post  Facto  Laws 19,  417,  477 

Examination  of  Witnesses,  direct,  cross,  etc 338 

Excavation  of  Adjoining  Land,  a  nuisance  when 64,  214 

Exceptions,  in  deeds 131 

to  pleadings,  in  admiralty 398 

equity 372 

Exchange,  deed  of 130 

of  prisoners  of  war 449 

Excusable  Homicide,  instances  of .  529 


INDEX  721 

[The  re4%srences  are  to  sections] 

Execution,  writ  of 347 

against  personal  property 347 

real  property 347 

sureties,  by  scire  facias 272 

body 347 

choses  in  action 347 

in  actions  of  detinue 347 

ejectment 347 

replevin 347 

capital  cases 617 

civil  cases 250,  347 

criminal  cases 615 

suits  in  admiralty 400 

equity      376 

levied  on  land,  how 122,  347 

service  and  return  of 347 

stay  of 346 

in  capital  cases,  for  pregnancy  or  insanity  616 

on  appeal  or  writ  of  error 273,  346 

under  homestead  exemption  laws 347 

when  unavailable,  resort  of  plaintiff 270 

Execution  of  Criminal,  is  by  legal  necessity 469 

Execution,  title  to  land  by 122 

Executors  and  Administrators 404 

decree  of  title  by 123 

Executory  Devises 100 

Executory  Estates 100 

Exemplifications 336 

Exequatur 439 

Exhibitions,  Immoral,  when  a  crime 502 

Exoneration,  of  sureties 362 

Expert  Witnesses 337,  608 

in  criminal  cases 608 

Explosives,  Dangerous,  Keeping  of,  when  a  crime 509 

Exposure  of  the  Person,  when  a  crime 502 

Exposure  to  Prosecution,  evidence  leading  to  excluded          329,  608 

Express  Malice,  in  murder 530 

External  Sovereignty,  complete  or  incomplete 432 

Extortion 512 

Extradition,  arrest  by 586 

rights  of  State  in  cases  of 41 

Extra-Judicial  Remediics 237-247 

abatement  of  nuisances 241 

accord  and  satisfaction 243 

arbitration  and  award 2A4 

distress 242 

entry       240 

lien      247 

recaption 239 

remitter      246 

retainer      245 

46 


722  INDEX 

[The  references  are  to  sections] 
ExTRA-JuDiciAL,  REMEDIES  —  Continued. 

self-defence 238 

Extraordinary  Actions 264-269 

special  pleas  in 323 

Factorizing  Process 271 

Factors,  rights  and  duties  of 165 

False  Imprisonment 207 

as  a  crime 550 

by  boycotting 552 

kidnapping    ...  551 

False  Weights  and  Measures 506 

tokens,  dice,  documents,  etc 506 

Falsifying  Records 514 

Family,  the  social  unit      171,  222 

Family  Head  and  his  Dependants 193-195 

reciprocal  rights  of 194 

who  is     .    .    .  • 193 

wrongs  against 231,  232 

from  one  another 233,  234 

third  parties 195 

Family  of  Nations,  includes  whom 431 

Family  Records,  entries  in 330 

Family  Rights       28,  171-195 

injunctions  to  protect 349 

wrongs  against 222-234 

Father,  authority  of 171 

Fault,  Equal,  as  a  defence 281 

Federal  Bankrupt  Act 406 

Federal  Constitution,  a  grant  of  powers 412 

confers  complete  external  sovereignty 413 

purpose  and  effect  of 413,  414 

Federal  Courts 248 

jurisdiction  of,  in  criminal  cases 580,  581 

Federal  Union  of  States 432 

Fee,  base,  determinable,  qualified 93 

Fee  Simple,  how  created      78 

implied  by  law 78 

no  restrictions  on  alienation  of 77 

Fee  Tail,  ancient  action  to  recover 253 

estates  in 79 

Feigned  Issue 373 

Fellow  Servants,  liability  for  acts  of  ... 165 

Felonies,  what  crimes  are  now 476 

Felonious  Intent,  in  burglary 559 

Feme  Sole,  married  woman  may  be  in  equity 364 

Feoffment,  deed  of 130 

Ferries 63 

Feudal  Estates 90 

abolition  of • 90 

Fictions •    •     332 


INDEX  723 

[The  references  are  to  sections] 

Fidelity  and  Skill,  contract  for 159 

Fieri  facias 347 

Fighting,  as  a  crime 499 

Final  Process 299 

Finder  of  Lost  Property,  rights  and  duties  of     ...    147,  152,  564 

when  a  thief 564 

Fine,  as  a  penalty  for  crime 475,  476 

collected  by  scire  facias 272 

Fines  and  Penalties,  title  to 148 

Fire  Insurance 167 

Fishing  Rights      68 

Fishing  Vessels,  not  molested  in  war      450 

Fixtures,  defined,  ownership  of,  removal  of 56 

Flag  of  Truce 452 

Floatage,  right  of 68 

Flowage,  right  of 68 

Force,  direct  and  indirect 197 

Forcible  Entry  and  Detainer 498 

Foreclosure  of  Mortgage 92 

Foreign  Attachment 271 

Foreign  Ministers,  rights  and  duties  of 438 

Foreign  States,  raising  troops  to  invade 484 

wrongs  by  their  own  citizens,  adoption  of  .     429,  430 

Forestalling 507 

Forfeiture,  as  a  penalty  for  crime 118,  475,  476 

for  disclaimer  of  landlord's  title 118 

wrongful  alienation  of  particular  estate    ....  118 

waste 118 

in  equity 355 

title  by 118,  148 

FORGEBY        569 

distinguished  from  counterfeiting 570 

of  bonds  of  foreign  States 484 

records,  by  false  alterations 514 

Form  of  Action,  defined 252 

technical  words  denoting 252 

under  New  Procedure 252,  324 

Formal  Accusation,  against  the  alleged  offender 591 

by  complaint,  indictment,  information,  etc.  591 

Former  Jeopardy,  plea  of 602 

its  meaning  and  effect 602 

Former  Judgment  and  Recovery,  as  a  defence 283 

Forms  and  Precedents,  in  pleadings 305 

Fornication,  as  a  crime 505 

Foods,  Adulterated,  when  a  nuisance 203 

Fortresses,  injury  to,  as  a  crime 494 

Franchise 63 

repealed  by  scire  facias      272 

title  to,  how  tried 268 

Fraud,  defined 197 

injunctions  against 349 


724  INDEX 

[The  references  are  to  sections] 

Fraud,  vacates  all  contracts 353 

Fraudulent  Conveyances 136 

Freedom  of  Contract  or  Labor,  protected  by  injunction  .    .    .  349 

Freehold  Estates 70 

Free  Speech,  right  to 39 

Freight  on  Vessels 387 

Freshet,  effect  of      116 

"From  the  Person,"  in  robbery 565,  566 

Fructus  I ndustriales 55 

Naturales 55 

Fruit,  ownership  of 55 

Fugitive  Troops,  in  neutral  territory 454 

Vessels,  in  neutral  waters      454 

Functions  of  Government,  executive,  judicial,  legislative   .    .    .  416 

Future  Estates,  how  created  under  Statute  of  Uses 75 

seisin  of 72 

Gaming-House,  keeping  of,  a  crime 502 

Garnishment 271 

in  civil  actions 299 

special  defences  in 291 

General  Appearance,  waives  formal  objections 300 

General  Average 388 

General  Denial 310 

General  Issue 310 

General  Occupant 80 

Genuineness  of  Documents,  proof  of      336 

Gift,  deed  of 130 

title  by 156 

Gifts  Causa  Mortis 156 

Inter  Vivos 156 

Goods,  abandoned,  title  to 147,  152 

accidentally  or  wrongfully  commingled 154 

of  deceased  person  intestate,  title  to 149 

sold  and  possession  retained  by  vendor 163 

thrown  away  by  fleeing  thief,  title  to 147 

Government,  as  delegate  of  the  people 411 

forms  of 416 

origin  and  nature  of  constitutional 412 

Governmental  Functions,  species  of       416 

Governor  of  Invaded  Territory,  powers  of 451 

Grand  Jury 592 

Grant,  deed  of 130 

of  real  property 127 

acceptance  presumed 127 

when  voidable      127,  135 

title  by 127 

Grant  of  Powers,  Federal  Constitution  as  a 12,  412 

Grantor,  presumed  to  know  contents  of  grant 132 

Grantors  and  Grantees  of  Real  Property,  who  may  be     .    .  127 

Ground  Rent 62 


INDEX  725 

[The  references  are  to  sections] 

Groundless  Action  or  Prosecution 206 

Guarantor,  Rights  and  Duties  of      170 

Guaranty  and  Suretyship,  contracts  of 170 

Guardian  ad  Litem  in  civil  cases 187 

criminal  cases 597 

Guardian  and  Ward,  relations  of 183-188 

rights  against  outside  parties 186 

wrongs  against 227,  228 

Guardian  or  the  Person,  rights  and  duties  of 184,  186 

compensation  of 184 

injury  of  by  ward      234 

by  to  ward 233 

subject  to  control  of  court   .     184,  364,  407 

when  to  give  bonds 184 

Guardian  of  the  Estate,  rights  and  duties  of   ...    .     183,  185,  186 

liable  to  account 185 

for  losses 185 

to  support  ward  when    ....      185 

management  of  estate  by 185 

title  to  property  of  ward 151 

subject  to  decree  of  court  .  .  123 
equity  jurisdiction  364 
probate  jurisdiction     407 

Guardians  of  Incapables 188,  364,  407 

Guilty,  plea  of 601 

in  capital  cases 601 

Habeas  Corptis,  vrrit  of,  history  of 40,  269 

not  to  review  on  error  or  appeal 269 

special  defences  in      291 

Habendum  et  Tenendum 131 

Habere  Facias      347 

Handwriting,  proof  of 336 

Health,  defined 34 

crimes  against 548 

nuisances  to 34,  203,  508,  548 

protected  by  law 35,  38,  349 

injimction 349 

Hearing  in  Damages 345 

Hearsay  Evidence 330 

Heirs,  classes  of,  who  are 113,  114 

"  Heirs,"  when  necessarj'  in  deeds 78 

High  Seas,  not  property 43,  433 

Highways,  defined 69 

laws  governing 69 

obstruction  of,  as  a  crime 502 

Hilary  Rules 313 

Homestead  Exemption  Laws 195 

Homicide,  defined      202 

analysis  of  facts  in  cases  of 537 

excusable,  justifiable      529 


726  INDEX 

[The  references  are  to  sections] 

Homicide,  from  gross  negligence  may  be  murder     .......  533 

not  actionable 202 

except  by  statute 460 

ultimate  test  of  guilt  in  cases  of 537 

Hostility  to  Foreign  States,  exciting,  as  a  crime 494 

Hot  Blood,  in  cases  of  homicide 535,  536 

Hotchpot    .....  361 

Household,  legal  character  of 171 

Hue  and  Cry 584 

Human  Bodies,  property  in 143 

Human  Law,  defined 1 

Husband,  alienating  affections  of 224 

battery  of 224 

chastity  of,  wife  no  legal  right  to 224 

duties  of  toward  wife      176 

protection,  support 176 

liable  for  debts  and  torts  of  wife 174 

rights  of,  to  wife's  presence,  services,  wages,  love,  so- 
ciety, property,  etc 150,  174,  177,  223 

wrongs  against 223,  234 

Husband  and  Wife,  estates  in  entirety  of 106 

modem  changes  in  law  of 174 

quasi  community,  property  of 150 

rights  against  third  parties 177 

separation  by  agreement 173 

desertion 173 

divorce 173 

when  may  not  testify 329 

wrongs  against      223,  224 

Hypothetical  Pleadings 305 

Ice,  ownership  of 54 

Idleness,  when  a  crime 502 

Ignorance  of  Fact,  no  excuse  if  voluntary  and  culpable     .    .    .  467 

law  requires  knowledge  before 

acting  at  all 467 

some  crime  intended  and  a  dif- 
ferent one  committed     .    .    .  467 

Ignorance  of  Law,  no  excuse  in  any  case 464 

Ignorantia  Legis  non  excusat 464 

III  Fame,  house  of,  keeping  a  crime 502 

Illegitimate  Child      178 

Immoral  Exhibitions,  as  a  crime 502 

Immovable  Property 26,  48,  50 

Immunity  from  Suit 293 

Impeachment  of  Witnesses 340 

Imperfect  and  Perfect  Crimes 573 

Implied  Contracts,  species  of 159 

Malice •  530 

Impossible  Contracts,  when  invalid 158,  162 

Imprisonment,  false,  as  a  private  wrong 207 


INDEX  727 

[The  references  are  to  sections] 

Imprisonment,  false,  right  to  escape  from 40 

when  a  crime 550 

as  a  penalty  for  crime 475,  476 

"  In  Being,"  what  persons  are 526 

Incapables,  equity  jurisdiction  over 364 

guardians  of 188,  407 

Incapacity  of  Parties,  as  a  defence 279 

to  sue      293 

Incest,  as  a  crime 505 

Incomplete  Sovereignty 432 

Incorporeal  Hereditament,  defined 57 

abandonment  of 117 

affirmative  and  negative      ....  57 

appurtenant  and  in  gross     ....  57 

continuous  and  non-continuous  .    .  57 

created  by  express  grant      ....  58 

implied  grant      ....  58 

presumed  grant      ...  58 

creation  and  extinguishment  of      .  58 

non-user  of 117 

nuisance  to 214 

title  to  by  prescription     .    .    .    .  58,  119 

estoppel 119 

Incorporeal  Real  Property 26,  51,  57-69 

Incumbrances,  covenants  against,  in  deeds 131 

Indebitatus  Assumpsit,  action  of 255 

Indemnity  Contracts      167 

Indentures  and  Deeds  Poll 129 

Indictment  or  Information,  requisites  of 593 

description  of  accused  by  name,  etc 594 

criminal  act 595 

place  and  date  of  crime 594 

property  or  person  injured      ....  595 

Indirect  Evidence 327 

Indorsement,  contract  of 169 

Indorsers,  rights  and  duties  of 169 

Inducement,  matter  of,  in  pleadings 309 

Infancy,  may  indicate  absence  of  intent 465 

serve  as  defence  in  criminal  case 465 

Infant,  becomes  of  age  when      182 

eqxiity  jurisdiction  over      364 

must  sue  by  guardian  or  next  friend 187 

defend  by  guardian 187 

power  to  contract 158 

wrongs  of,  parent  not  liable  for 235 

Infectious  Disease,  exposure  to,  a  crime  when 509 

Inferential  Evidence 327 

Inferior  in  Family,  wrongs  of  against  superior 234 

wrongs  of  superior  against 233 

Information,  in  criminal  cases 591-595 

giving  of,  to  foreign  States,  a  crime  when    ....  494 


728  INDEX 

[The  references  are  to  sections] 

Injunctions,  against  fraud 349 

infringements  of  liberty 349 

injuries  to  health  and  comfort 349 

invasion  of  family  rights 349 

irreparable  injury  to  property 349 

slander  of  property      349 

binding  on  whom 349 

bond  on  issue  of 349 

ex  parte 349 

perpetual  or  temporary 349 

prohibitory  or  mandatory 349 

Injuria  and  Damnum 196 

causal  relation  of 198 

Injuria  sine  Damno 196 

Injuries  to  Husband 224 

Trade  and  Labor 208,  221,  349,  507,  552 

Wife      223 

Injury,  Irreparable,  injunctions  against 349 

Innocence,  presumption  of      .    . 37,  589 

Innocent  Person,  self  defence  no  excuse  for  killing 469 

In  pari  delicto  potior  est  conditio  defendentis 281 

Inquest  op  Office 115 

Insane  Persons,  guardians  of  .    . 188,  364,  407 

power  of  to  contract 158 

Insanity,  a  defence  in  criminal  cases 466 

burden  of  proof  as  to 466 

forms  of 466 

may  show  absence  of  intent 466 

when  and  how  tested 596 

stay  of  execution  for 616 

Inspection  of  Objects  by  Jury 335 

Insurable  Interest 167,  390 

Insurance,  contracts  of 167 

"In  the  Peace,"  what  persons  are 526 

"In  THE  Presence  OF,"  in  robbery 565 

Intent,  essential  to  crime 463,  464 

presumed  from  criminal  act 464 

want  of,  how  proved 464 

in  slander      205 

to  commit  act  evidently  impossible 543,  574 

felony,  in  burglary 559 

to  kill,  in  homicide      528 

in  manslaughter,  not  malicious 532 

to  steal,  in  larceny 564 

Intent  Specific,  defined      471 

exists  in  what  crimes 471 

not  presumed  but  must  be  proved 471 

part  of  criminal  act ;    .    .  471 

Intercourse  between  Belligerents      452 

Interest 168 

implied  contract  for 159 


INDEX  729 
[The  references  are  to  sections] 

Interference  with  Competition 507 

contracts  or  labor     .    .    .    208,  221,  349,  507,  552 

injunctions  against 349 

Internal  Sovereignty,  manifested  in  governmental  functions    .  416 

International  Crimes 484 

International  Etiquette      440 

International  Law,  defined 4,  412,  434 

affects  only  family  of  nations 434 

binding  on  citizens  of  all  States 484 

rules  of  how  enforced 483 

Interpleader,  bill  of 350 

Interpretation,  of  contracts      161 

pleadings 306 

statutes 17 

wills      139 

Interpreter,  when  provided  in  court 596 

Interrogatories  in  Equity 372 

Intervenors  in  Admiralty  Suits 397 

Intervention,  right  of,  between  States 441 

Intestate  Estates,  probate  of,  why  necessary 403 

settlement  of      403,  405 

Intoxicating  Liquors,  sale  of,  when  a  crime 502 

Intoxication,  no  excuse  for  criminal  act      471,  525,  531 

may  affect  degree  of  responsibility 471 

Intrusion,  as  a  wrong  against  real  property 211 

Inventions 155 

Inventory  of  Probate  Estates 405 

Involuntary  Manslaughter 532,  533 

Irreparable  Injury,  injunctions  against 349 

Irrigation  Rights 54,  68 

title  to  by  prior  occupation 125 

Islands,  ownership  of 116 

Issue,  of  fact 325 

law 325 

special 310 

Jeofails  and  Amendments 344 

Joinder  of  Actions      276 

Counts  and  Crimes 593 

Indictments      607 

Joint  Defendants,  in  criminal  cases,  tried  separately  when     .    .  607 

Joint  Estates,  in  personal  property      145 

control  of  equity  over 356 

Joint  Obligors,  rights  of 362 

Joint-Stock  Corporations 23,  166 

Joint  Tenancy,  estates  in 105 

Joint  Tort-Feasors,  liability  and  release  of 236 

Joint  Wrong,  as  a  defence 281 

Jointure 84 

Judge,  duty  and  powers  of 248 

may  suspend  sentence      474 


730  INDEX 

[The  references  are  to  sections] 

Judgment  in  Civil  Cases 250,  345 

interlocutory  or  final 345 

on  nonsuit 345 

retraxit      345 

default 300,  345 

confession 345 

nihil  dicit 345 

demurrer      345 

verdict 345 

plea  in  abatement      308 

actions  of  debt  on 256 

on  traverses 303 

Judgment  in  Criminal  Cases 613 

arrest  of 612 

in  courts  of  probate 409 

conclusive  unless  appealed  from 409 

pro  confesso  in  admiralty  suits      397 

Judgment  Liens 92,  122,  247 

Judgment  Merges  Debt 162,  283 

Judgment  Necessary  to  Remedy 248 

Judgment  Revived  by  Scire  Facias 272 

Judgment,  Stay  of 344 

Judicial  Decision,  defined      10 

Judicial  Decree,  title  by 123,  151 

Judicial  Duties,  how  enforced 265-268 

Judicial  Notice 16,  20,  334 

Judicial  Remedies 237-409 

Judicial  Sale,  title  by 151 

Jurisdiction  of  Courts  ....  248,  251,  348,  377,  401-403,  579-582 

Jurisdiction  of  Civil  Courts  in  civil  actions 251 

over  the  parties 251,  307 

how  acquired 251 

want  of 278,  307 

how  pleaded      307 

over  the  subject-matter 251 

fLxed  by  law 251 

want  of 251,  278 

in  actions  in  rem  or  personam 251,  393 

Jurisdiction  of  Criminal  Courts  over  criminal  prosecutions  580,  581 

over  the  person  of  the  accused     579,  582 

crime 579 

depends  on  locality  of  the  crime     .     580 
nature  or  penalty  of  the 

crime 581 

Equity  Courts 348-367 

Federal  and  State  Courts 580,  581 

pleas  to,  in  criminal  cases 599 

Jurisdiction  of  Laws 18 

Jurisdictional  Facts,  what  are 251 

Jury,  in  civil  cases 326 

how  challenged,  sworn,  etc 326 


INDEX  731 

[The  references  are  to  sections] 

Jury,  in  criminal  cases      605 

right  to  trial  by  cannot  be  waived 605 

how  challenged,  sworn,  etc 606 

trial  must  be  public 607 

deliberations  of 343 

disagreement  and  discharge  of 343,  611 

Justifiable  Homicide,  instances  of 529 

Justification,  plea  in 311 

in  slander 205 

Killing,  Acts  of,  what  are 527 

in  effort  to  arrest  criminals      585 

ultimate  criterion  of  its  criminality 537 

Kindred,  whole  and  half  blood 113 

Labor,  combinations  against 208,  221,  349,  507,  552 

right  to 39 

Land,  classes  and  ownership  of 52 

when  money 26,  361 

lateral  and  horizontal  support  of 64 

Land  System  of  the  United  States 128 

Lands,  Tenements,  and  Hereditaments 51 

Larceny,  simple,  compound,  petit,  grand 565 

a  continuing  crime 561 

embezzlement,  false  pretences,  etc.,  distinguished  from  568 

the  taking  and  carrying  away  in 561 

property  involved  in      562 

ownership  of  the  property 563 

intent  to  steal.  Inert  causa 564 

Law,  defined 1 

common 5 

eternal,  natural,  positive,  divine,  human,  political     ....  1 

every  person  presumed  to  know 464 

Federal  or  State 7 

fundamental  divisions  of 27 

international,  national,  municipal 4 

maritime,  ecclesiastical 6,  377 

national,  of  the  United  States,  origin  of 5,  6 

of  individual  States  of  the  American  Union 7 

origin  and  development  of      9 

protects  life,  limbs,  and  body  how 33 

public  or  private 3 

purpose  of 2 

State  subordinate  to 412 

study  of 1 

unwritten,  written 8 

unwritten,  pxprossod  in  maxims,  definitions,  and  judicial 

decisions 10 

interpretation  of 11 

written,  forms  of 12 

interpretation  of    .    .        17 


732  INDEX 

[The  references  are  to  sections] 

Laws,  conflict  of 18 

constitutionality  of,  how  tested 40,  412,  421,  429 

effect  of  changes  in 19 

ex  post  facto 19,  417,  477 

in  force  where 18 

judicial  notice  of 16,  20 

practical  application  of 21 

proof  of 16,  20 

Lawyer,  functions  and  training  of Preface,  1,  11 

Lay-Days 381 

Leading  Questions 338 

Lease  and  Release,  deed  of       130 

Lease,  deed  of 130 

Leasehold  Interests 88 

Legacies,  general,  specific,  lapsed,  etc. 157 

Legal  and  Equitable  Estates 49 

Legal  Remedies 237 

Legislature  of  the  United  States,  powers  of 417 

Letters,  Private,  statements  in 330 

Letting  on  Shares 55 

Levying  War 487 

Lewdness,  Public,  a  crime 502 

Lex  Domicilii 18,  161 

Fori 18,  161 

Ligeantioe      18,  161 

Loci  Actus 18,  161 

Contractus 18,  161 

Pacti 18,  161 

Rei  Sitae 18,  161 

Solutionis 18,  161 

Liability  of  Actor,  for  proximate  consequences  of  act     ....      198 

Libel,  as  a  breach  of  the  peace 500 

crime 500,  549 

tort 204 

seditious 493 

against  foreign  States 484 

truth  or  falsehood,  when  important 500 

Libel  in  Admiralty  Proceedings 395 

Liberty  of  Person,  right  to  cannot  be  waived 39 

wrongs  against 208 

License,  rights  under 89 

to  enter  on  land 89,  213 

to  trade,  between  belligerents 452 

Lien,  at  common  law 247 

as  a  remedy      247 

enforced  by  scire  facias 272 

in  equity 358 

judgment 92,  122,  247 

maritime 247 

mechanics 92,  247 

mortgage 92 


INDEX  733 

[The  references  are  to  sections] 

Lien,  tax 247 

vendee's 92 

vendor's 92,  247 

on  vessel  in  domestic  ports 382 

foreign  ports 382 

Life,  begins  and  ends  when 31 

Life  Estates      80 

Life  Tenant,  rights  and  duties  of      85 

Life  and  Accident  Insurance 167 

Light  and  Air,  right  to 67 

Lights  and  Whistles,  in  navigation 386 

Limbs,  defined 32 

protected  by  law 33,  202,  540 

Limitation 93 

Limitations  of  Powers,  State  Constitutions  as 412 

Limited  Liability  Acts,  in  maritime  law 387,  400 

Limited  Partnership 166 

Liquidated  Damages 355 

Liquors,  sale  of  when  a  crime 502 

Literary  Property      155 

Livery  of  Seisin '  71 

Loaned  Goods,  title  to  when  misused 148 

Locality  of  Crime,  how  determined 580 

Locomotion,  right  of 39 

Lost  Goods,  title  to 147,  152,  564 

"  Lucri  Causa,"  in  larceny 564 

Lunatics,  equity  jurisdiction  over      364 

guardians  of 188 

probate  jurisdiction  over 407 

Machinery  Dangerous,  when  keeping  of  is  a  crime 509 

Maintenance 522 

Majority,    when  reached  by  infant 182 

Malfeasance 197 

in  office,  as  a  crime 494 

Malice  Aforethought,  in  murder 530 

express  or  implied 530 

Malice,  in  libel 204 

murder  and  manslaughter 532 

slander 205 

Malicious  Conspiracy  against  Reputation,  as  a  crime  ....  549 

Mischief 571 

Prosecution 206 

Publication 204,  205 

Managing  Owner     380 

Mandamus 265 

special  defences  in      291 

Manors  Feudal,  origin  and  history  of 70 

Manslaughter 532 

involuntary 533 

voluntary 534 


734  INDEX 

[The  references  are  to  sections] 

Manslaughter,  voluntary,  sudden  combat 535 

sufficient  provocation 536 

Makine  Contract      378 

Crimes,  locality  of 391 

Insurance 167,  390 

Tort 378,  391 

League 433 

Maritime  Law       6,  377-400 

Lien 247,  382 

Warfare 450 

Marriage,  contract  of,  status  of 172 

ceremony,  consideration,  parties 172 

proposal  and  acceptance,  subject-matter,  validity     172 

dissolution  of  by  state 173 

makes  parties  one  legal  person 174 

title  by 121,  150 

when  bigamous 504 

Married  Women,  power  to  contract      158 

equity  jurisdiction  over 364 

Marshalling  Assets 363 

Martial,  Courts 248 

Law,  violations  of,  as  a  crime 494 

Master  and  Servant,  relation  of 189-192 

battery  of  master      230 

injury  by  master  to  servant 233 

servant  to  master 234 

rights  and  duties  of 191 

as  against  third  parties       192 

wrongs  against 229,  230 

Master  of  Vessel,  liability  of 383 

power  of  over  cargo  and  vessel    ....     380,  383 

passengers 383 

..^ seamen 383,  384 

rights  and  duties  of 383 

Material  Evidence      328 

Material  Facts 328 

Material-Men 382 

Materials,  of  one  person  united  with  labor  or  materials  of  another, 

ownership  of 153 

Maxim,  defined 10 

Maxims  of  Equity 348 

Mayhem 32,  202,  540 

Mechanic's  Lien 92,  247 

Mediator  between  States 441 

Meetings,  Disturbing 497 

Memoranda,  as  evidence 331 

Menace,  as  a  wrong,  no  implied  damage 201 

Menials 189 

Mental  Suffering,  no  action  for 29,  34 

Merger,  of  claim  or  contract  in  judgment 162,  283 

crimes 473 


INDEX  735 

[The  references  are  to  sections] 

Merger,  of  tort  in  crime 460 

Mesne  Process 299 

Mesne  Profits 254,  322 

Military  Courts 248 

Military  Government  of  Invaded  Territory 451 

Law,  disobedience  to,  when  a  crime 494 

Occupation  of  Enemy's  Land 451 

Operations,  rules  regulating 448 

Mill-Rights 68 

title  to,  by  prior  occupation 125 

Minerals,  classes  and  ownership  of 53 

Mining  Rights  in  Water 68 

Miscegenation  as  a  crime       505 

Misdescription  of  Parties,  as  a  defence 279 

Misfeasance 197 

Misjoinder  of  Parties,  as  a  defence 279 

Misleading  Others,  as  a  wrong 197,  208 

Misprision,  defined 492 

of  felony 518 

treason       492 

Misrepresentation,  as  a  wrong 197 

Mistake  of  Fact,  of  Law 467 

Mittimus,  on  arrest 587 

execution 615 

Mixed  Actions 253 

Monarchy,  as  a  form  of  government 416 

Money  Had  and  Received      159 

Laid  out  and  Expended 159 

Lent  and  Advanced 159 

when  land 26,  361 

Monopolies  in  Trade,  when  a  crime 507 

Monopoly 63 

Monthly  Tenant      87 

Monuments,  inscriptions  on,  as  evidence      330 

Moonlight,  in  burglary 558 

Mortgage,  debt,  estate,  lien 92 

foreclosure,  redemption 92 

in  equity 358 

Mother,  rights  over  child 178,  179 

Motions 307 

for  arrest  of  judgment 344 

a  change  of  venue      598 

new  trial 344 

to  quash 598 

Movable  Property 26,  50 

Multipartite  Controversies,  equity  jurisdiction  in 350 

Multiplicity  of  Suits,  prevention  of  in  equity 350 

Murder,  defined 526 

of  unborn  child       31,  526 

the  act  of  kiUing 527 

degrees  of  murder 531 


736  INDEX 

[The  references  are  to  sections] 

MuBDER,  the  intent  to  kill 528 

malice  aforethought 530,  532 

person  killing      525 

killed 526 

unlawfulness  of  the  killing 529 

Mutual  Mistake,  effect  of,  in  contracts 354 

Naked  Possession,  right  of 44 

Names  of  Persons 22 

Natural  Guardian 183 

Law 1 

basis  of 431 

Navigable  Waters 54 

obstructing  of,  as  a  crime 502 

Ne  Exeat 365 

Ne  Unque  Recevoir 316 

Nee  Non 303 

Necessaries  for  Wife,  what  are 176 

Necessity,  as  a  defence  for  crime 469 

defined,  legal,  actual 469 

may  show  absence  of  intent 469 

no  excuse  for  crimes  against  innocent  persons     .    .    .  469 

Negative  Pregnant 306 

Negligence,  contributory,  as  a  defence 281 

of  victim,  no  excuse 474 

slight,  ordinary,  wanton,  gross 197 

Negotiable  Instruments  Law      169 

Neutral  Goods 457 

Persons 455 

may  become  belligerents  how      455 

States 454 

by  international  consent 432 

Vessels      456 

may  become  belligerents  how 456 

Neutbalitt,  breach  of  by  neutral  goods 455,  457 

persons 455 

States 454 

vessels 456 

remedies  for 459 

perfect  and  imperfect 454 

New  Procedure,  forms  of  action  in      252 

special  defences  under 292 

pleas  in 324 

New  States,  creation  and  admission  into  family  of  nations     .    .  435 

New  Trial 366 

grounds  of      344 

in  criminal  cases       612 

Next  of  Kin      404 

Night  Season,  in  burglary 558 

Nihil  Dicit 345 

NH  Debet      314 


INDEX  737 

[The  references  are  to  sections] 

Noises,  Offensive,  when  a  crime 509 

nuisance 203 

Nolo  Contendere,  plea  of 601 

Non  Cepit  in  Modo  et  Forma 320 

Detinet 320,  321 

Est  Factum      314,  315 

Obstante  Veredicto 344 

Nonfeasance,  as  a  wrong 197 

Nonjoinder  of  Parties 279,  293 

Nonsuit 345 

for  default  of  appearance  by  plaintiff 300 

motion  for 341 

Not  a  True  Bill 592 

Not  Guilty,  plea  of 604 

burden  of  proof  on 604 

covers  all  defences      604 

Notes  and  Bills 169 

Notice,  defined,  actual,  constructive 360 

by  public  records 360 

to  quit 87 

Notices,  in  pleading     310,  313 

Novation,  effect  on  liability 294 

Novel  Assignment 309 

Nuisavce,  defined      35,  203,  214,  502,  509,  548 

abatement  of 241 

injunctions  against 349 

lawful  act  not      203 

to  health 203,  214 

real  property 214 

duty  of  landlord  or  owner  to  remove     ....  214 

property  and  person  both 214 

Nul  Disseisin,  plea  of 322 

Tiel  Record,  plea  of 314 

Nuncupative  Wills 157 

Oath,  testimony  when  given  under 519 

Objects,  inspection  of,  by  jury 335 

of  crime       474 

Obscene  Books  and  Pictures 502 

Obstruction  of  Highways,  Rivers,  etc 502 

Process 516 

Occupancy,  title  by 152 

Occupant,  general  and  special 80 

Oceans,  not  property 43 

Office,  defined 61 

title  to,  how  tried 268 

Office-Found 115 

Officers  of  Court ' 248,  249 

Officers  de  Facto      61 

Officers,  public,  killing  when  murder 516 

releasing  prisoner,  become  accessary 517 

47 


738  INDEX 

[The  references  are  to  sections] 

Official  Duties,  mandamua  to  enforce 265 

Official  Negligence 510 

Olographic  Will      157 

"  Once  a  mortgage,  always  a  mortgage  " 358 

Open  Policy  of  Insurance 390 

OPENiN^i  Statement  of  Counsel 325,  326,  609 

Oppression,  as  a  crime 511 

Oral  and  Written  Evidence 333 

Original  Process 299 

Orphans'  Courts 401 

Ouster,  as  a  wrong  against  real  property 212 

Overt  Act.  in  treason 489 

Owners  of  Vessels      380 

Ownership,  defined 44 

rigtits  of,  how  violated 209 

of  combined  structure  and  materials 153 

property,  in  larceny 563 

Oyer 315 

Pacific  Blockade 444 

Paraphernalia  of  Wife 150 

Pardon,  in  criminal  cases 614 

effect  of,  absolute,  conditional 603 

form  of 603 

plea  of      603 

power  to 603 

Parens  Patrice      364 

pAiiENa.  duty  of  to  legitimate  children 180 

to  defend,  support,  educate,  etc 180 

injury  to  by  child 234 

liability  for  torts  and  contracts  of  child 181 

rights  to  security,  liberty,  and  wages  of  child    .    .    .     179,  181 

over  and  against  legitimate  child 179 

against  third  parties 181 

wrongs  of  against  child 233 

against  by  child 226,  234 

damages  recoverable  for 226 

Parent  and  Child,  relation  of 178-182 

wrongs  against 225,  226 

Parole  of  Honor 449 

Parties,  in  civil  actions  in  common  law  courts 293-298 

admiralty  courts 394 

equity  courts 369 

jurisdiction  over,  how  acquired    ....  251 

must  be  correctly  described 279 

new,  brought  in  by  scire  facias     ....  272 

under  New  Procedure 298 

extraordinary  actions,  etc.     .    .  297 

Parties-Plaintiff,  in  actions  ex  contractu 293 

ddicto 295 


INDEX  739 
[The  references  are  to  sections] 

Parties-Defendant,  in  actions  ex  contractu 294 

delicto 296 

Parties  to  Deeds 129 

Partition Ill 

in  equity 356 

of  personal  property 145 

real  property,  by  deed 130 

Partnership,  contracts  of 166 

estates  in 109 

Party-Walls 65 

Passports,  violation  of,  a  crime      484 

Patent,  for  inventions      155 

land,  by  State 128 

conclusive  evidence  of  title 128 

construction  of 128 

repealed  by  scire  facias 272 

Payment  of  Debts 168 

Peace,  restoration  of 453 

by  conquest 453 

quiet  cessation  of  hostilities 453 

treaty 453 

Pedigree,  statements  relating  to,  as  evidence 330 

Penalties  for  Crime,  death,  imprisonment,  fine 475 

State  fixes 475 

unusual  or  cruel  forbidden 477 

Penalties  and  Forfeitures,  in  equity 355 

Pendency  of  Prior  Action,  as  a  defence 279 

Pensions 60 

People,  who  are 411,  423 

retain  and  may  resume  delegated  sovereignty 411 

rights  against  State 428 

of  revolution 428 

seat  of  sovereignty      411 

Per  Verba  de  Futuro 172 

Presenti 172 

Percolating  Waters,  right  to 54,  68 

Perfect  and  Imperfect  Crimes 573 

Performance  of  Contracts 160,  162 

"  Perils  OF  the  Sea,"  in  marine  insurance 390 

Perjury       519 

subornation  of 519 

Perpetuate  Testimony,  bill  to 365 

Perpetuities,  Rule  against 102 

Person,  artificial 22 

comprises  what 29,  202 

clothing,  vehicles,  etc 202 

description  of.  as  injured  party 595 

disfigurement  of,  when  a  crime 32 

domicile  of 22 

in  murder,  when  killed 526 

killing    .    .            525 


740  INDEX 

[The  references  are  to  sections] 

Person,  is  what  the  law  defines  him  to  be 26 

name,  natural,  status 22 

power  of  State  over 38 

wrongs  against,  when  crimes 524-552 

Personal  Actions 253 

Personal  Liberty,  defined 39 

cannot  be  entirely  surrendered 39 

includes  what      39 

legal  limitations  on 41 

protected  by  law 40 

Personal  Property,  defined,  characteristics  of  .    .    .    26,  50,  140-170 

consumption  of 142 

estates  in 142-145 

absolute  and  conditional 143 

joint  and  several 145 

present  and  future 144 

qualified 143 

recoverable  in  specie      140 

regulated  by  lex  domicilii 140 

title  to      146-170 

transferred  without,  deed 140 

vests  in  executor 140 

in  larceny 562 

Personal  Rights      28-41 

Personal  Security,  right  of 29-38 

defined 30 

legal  limitations  on 38 

Petitions  for  Pardon 614 

Pews 66 

Physicians,  confidential  disclosures  of  patients  to 329 

Pilots,  rights  and  duties  of 385 

Piracy 485,  572 

Pitfalls,  when  a  crime  to  permit 509 

Place  and  Time,  of  crime,  how  described 594 

Plaintiff,  in  civil  actions 293,  295,  297,  298 

must  have  capacity  to  sue 279 

Plants 55 

Plea  in  Equity 371 

Pleas  of  Former  Jeopardy 602 

Guilty 601 

Nolo  Contendere 601 

Not  Guilty 604 

Pardon 603,614 

Pleading,  every  pleading  must  avoid  ambiguity 305 

departure 305 

duplicity 305 

repugnancy 305 

surplusage 305 

be  accurate 305 

complete 305 

concise 305 


INDEX  741 

[The  references  are  to  sections] 

Pleading,  every  pleading  must  be  definite 305 

positive 305 

follow    the  "Forms  and    Prece- 
dents " 305 

not  be  argumentative 305 

hypothetical 305 

mere  recital 305 

rebut    completely    the    previous 

claims 304 

Pleadings,  admit  all  that  is  not  denied 306 

bad  in  one  part  are  bad  in  all 306 

dilatory 301 

forms  of,  classes,  order,  purpose,  etc 301 

replication,  rejoinder,  surrejoinder,  etc 301 

in  admiralty  suits 398 

civil  actions 250,  301-325 

courts  of  equity 371,  372 

probate      408 

criminal  cases 590-604 

negative  pregnant  in 306 

Pleas  in  Abatement,  in  civil  cases 279,  301,  308 

criminal  cases 599 

Pleas  to  the  Jurisdiction,  in  civil  cases    ....    278,  300,  301,  307 

criminal  cases 599 

Plene  Computavit 316 

Police  Powers,  of  State      421 

Police  Regulations 33,  35,  421 

to  protect  property 45 

Policy  of  Insurance 167 

Political  Equality,  of  citizen,  right  to 39 

state,  how  acquired 431 

includes  what 431 

Political  Law,  defined 1 

Political  Supremacy  of  State 410 

Pollution  of  Waters,  as  a  wrong 68,  203,  509 

Poor,  support  of  by  State 33 

Positive  Law,  defined 1 

Positiveness,  in  pleadings 305 

Posse  Comitatus 583 

Possession,  actual  or  constructive 141 

is  "  nine  points  of  the  law  " 44 

naked,  right  of 44 

"out  of  the,"  in  larceny 561 

right  of       44 

how  violated 209 

Possibility  of  Reverter 89 

Postal  Laws,  violation  of,  as  a  crime 494 

Post-Nuptial  Settlements 84 

Powers 100 

classes,  and  execution  of 100 

"Precedents,"  in  pleadings 305 


742  INDEX 

[The  references  are  to  sectiona] 

Pregnancy,  of  defendant  in  capital  case 616 

stay  of  execution  for 616 

Premature  Action,  not  sustainable 279 

Premises  of  Deeds 131 

Prerogative,  title  by 147 

Prerogative  Writs      264-269 

Prescription,  title  by 58,  119 

Presence,  actual  or  constructive 479 

of  accused  in  court 596,  607 

judge  in  court  during  all  proceedings 607 

Presentment,  by  grand  jury 591-595 

President  of  the  United  States,  powers  and  duties  of  ...    .     419 

Presumed  Grant,  title  by 58,  119 

Presumption  of  Innocence 37 

Presumptions  of  Fact  and  Law 332 

Pretended  Titles,  sale  of,  as  a  crime 523 

Preventive  Remedies,  against  civil  injuries 237 

probable  crimes 578 

Prices,  combination  to  raise,  as  a  crime 507 

Primary  Evidence 331 

Principal  and  Agent,  rights  and  duties  of 165 

Principals  and  Accessaries      478-481 

Principals,  in  the  first  degree 478 

second  degree 479 

not  prosecuted  till  conviction  of  principal 

in  the  first  degree      ....     479-481 

Prior  Action  Pending  as  Defence 279 

Prior  Appropriation  of  Waters      68,  125 

Prior  Occupation,  title  by 125 

Prison-Breach 517 

Prisoners  of  War,  treatment  of 449 

Privacy,  right  to 39 

Private  Grant,  title  by 129-136 

Private  International  Law 18 

Private  Wrongs 196-236 

Privateering,  now  forbidden 450 

Privileged  Communications      204 

Prize  Cases,  jurisdiction  over 392 

Probable  Cause 206 

Probate  Courts 248 

jurisdiction  over  adoptions 407 

change  of  names 407 

divorce 407 

guardians 407 

habeas  corpus 407 

infants,  etc 407 

testate  and  intestate  estates  401-405 
trust,  insolvent,  and  bankrupt 

estates 406 

wills 402 


INDEX  743 

[The  references  are  to  sections] 

Probate  Courts,  procedure  in 408,  409 

Procedendo       266 

special  defences  in      291 

Procedure  in  Civil  Actions  in  Common  Law  Courts   .    .     299-347 

process,  service  and  return 299 

appearance  and  bail 300 

pleadings 301-325 

purpose,  classes,  order 301 

contents 302-304 

demurrers 302 

traverses 303 

confession  and  avoidance 304 

verbal  expression 305 

interpretation      306 

to  the  jurisdiction 307 

in  abatement 308 

to  the  merits 309-325 

declaration 309 

pleas  in  bar 310-325 

general  issue 310 

justification 311 

discharge      311 

replication 312 

subsequent  pleadings     ....     312 

special  pleas  in  assumpsit 313 

in  debt 314 

covenant-broken     ....     315 

account 316 

trespass 317 

trespass  on  the  case    ...     318 

trover 319 

replevin 320 

detinue 321 

disseisin 322 

ejectment 322 

extraordinary  actions,  etc.     323 

under  New  Procedure   ....     292,  324 

Code  Pleading     ....     292,  324 

final  issue  and  trial 325 

trial 325-344 

jury,  challenges,  order  of  trial      326 

evidence   327-341 

material  and  relevant 328 

confidential  communications 329 

hearsay  evidence 330 

best  evidence       331 

fictions  and  presumptions 332 

oral  and  written  evidence 333 

production  of  the  evidence 334-340 

facts  judicially  noticed 334 


744  INDEX 

[The  references  are  to  sections] 

Pkoceduke  in  Civil  Actions  in  Common  Law  Courts  —  Contintied. 

inspection  of  objects 335 

documentary  evidence 336 

testimony  of  witnesses 337-340 

competency  of  witnesses 337 

examination  of  witnesses  in  court  .     338 

depositions 339 

contradiction  of  witnesses    ....     340 
impeachment  of  witnesses    ....     340 

motion  for  nonsuit 341 

demurrer  to  evidence 341 

charge  to  jury 342 

deliberations  of  jury      343 

verdict 343 

stay  of  judgment 344 

motion  in  arrest  of  judgment 344 

for  new  trial 344 

judgment 345 

stay  of  execution,  audita  querela     ....     346 

writ  of  error,  appeal 346 

execution 347 

Process,  original,  mesne,  final 299 

service  and  return  of 299 

in  admiralty 396 

civil  actions 250,  299 

criminal  cases 583-589 

equity 370 

Prochein  Ami 187 

Profanity,  as  a  crime 503 

Profert 315 

Profits  a,  prendre 57,  59 

Progeny  of  Animals,  ownership  of 153 

Prohibition 267 

special  defences  in 291 

Promissory  Notes 169 

Property,  defined 43 

always  has  an  owner 72,  125 

as  subject  of  crime 553 

corporeal  or  incorporeal =    .    .    .    .       26 

crimes  against 553-572 

movable  or  immovable      26 

no  one  has  a  right  to  waste  or  destroy 46 

oceans  and  atmosphere  not 43,  143 

real  or  personal 26,  50 

subjects  of 43 

Property  at  Sea,  how  affected  by  war 447,  450 

Property  Injured,  how  described  in  indictments 595 

pleadings  in  civil  actions   .     309 
Property  of  Alien  Enemies,  how  affected  by  war 447 


INDEX  745 

[The  references  are  to  sections] 

Property  Rights      28,  42-170,  209 

classes  of 44 

naked  possession 44 

ownership 44 

possession 44 

defence  of  by  owner 45 

how  affected  by  war 447 

limited  by  law 46 

protected  by  law 45 

related  to  personal  liberty 42 

include  right  to  enjoy  and  dispose  of     ...    .        42 

Proposal  and  Acceptance,  in  contracts 158 

Prosecuting  Officer,  rights  and  duties  of      578 

may  refuse  to  prosecute 474 

Prosecution,  Malicious      206 

Protectorate  over  States 432 

Protest  of  Bills  and  Notes 169 

Protestation 304 

Provisional  Courts 248 

Provisions,  Unwholesome,  sale  of,  as  a  crime 509 

Provocation,  in  cases  of  homicide 536 

Proximate  Consequences,  of  conduct 198 

Public  Administr.\tor 404 

Public  Debts,  how  affected  by  war 447 

Public  Grant,  title  by 127,  128 

Public  Health,  crimes  against 508,  509 

Public  Justice,  crimes  against 510-523 

Public  Law,  defined 3,  410 

Public  Nuisances 502 

Public  Officers,  may  not  testify  when 329 

refusal  to  assist,  when  a  crime 494 

Public  Place,  defined 499 

Public  Policy,  crimes  against 502-505 

Public  Rights 410-459 

Public  Support  of  Poor 33 

Public  Trade,  crimes  against 506,  507 

Public  Trial,  necessary  in  criminal  cases 607 

Public  Welfare,  crimes  against 495-523 

Public  Wrongs 460-617 

character  and  classes  of 460 

may  injure  the  State  directly 460 

only    as    they    injure    the 

subject 460 

when  considered  crimes 460 

Publication,  service  of  process  by 299 

Punishment,  cruel  and  unusual  forbidden 477 

State  may  inflict 38,  475 

Purchase,  title  by 112,114 

Purchasers,  rights  of  against  voluntary  and  fraudulent  convey- 
ances      136 


746  INDEX 

[The  references  are  to  sections] 

Qualified  Fee 93 

Quantum  Meruit 159 

Quantum  Valebat 159 

Quarantine,  breach  of,  when  a  crime 509 

Quarter,  right  to 446 

Quash,  motion  to 598 

Qwast-CoMMUNiTY  Property,  of  husband  and  wife 150 

Q«asi-CoNTRACTS 159 

Quasi-EsTATES 89 

Qui  Tarn  Actions      274,  577 

Quia  Timet,  bill  of      367 

Quid  pro  quo,  in  compromises 243 

Quo  Warranto      268 

special  defences  in 291 

Rack  Rent 62 

Ransom  Contract 452 

Rape 544 

credibility  of  victim  as  a  witness 545 

Ratio  Decidendi 10 

Real  Actions 253 

Real  Property • 26 

characteristics  of 50 

classes  of 51 

ultimate  fee  is  in  the  State 128 

Reasonable  Creature,  who  is 526 

Reasonable  Doubt,  in  mind  of  juror,  what  is 608 

State  must  prove  guilt  beyond 608 

Reasonable  Hypothesis,  evidence  must  exclude  all  but  that  of 

guilt 608 

Rebel,  who  is 442 

Rebellion  in  Foreign  State,  interference  in 441 

Recaption,  as  a  remedy 45,  239 

Receivers,  in  equity 363 

for  mortgaged  estate 358 

title  to  property  of  estate 151 

Receiving  Stolen  Goods 518 

Recitals,  in  pleadings 305 

Recognizance  to  Keep  the  Peace 578 

Records,  of  courts 249 

in  criminal  cases 614 

deeds      74,  129,  360 

public,  as  evidence 336 

Recoupment      292 

Reddendum 131 

Reformation  of  Written  Contracts,  etc 161,  354 

Refreshing  Memory  of  Witness  from  Memoranda 338 

Registers'  Courts 401 

Registration  of  Vessels 379 

Regrating,  as  a  crime      507 

Rehearing,  in  equity  courts 375 


I 


INDEX  747 

[The  references  are  to  aectiona] 

Relationship,  degrees  of 113 

Relative  Rights 171-195 

Release,  as  a  defence 283 

deed  of 130 

of  attached  property,  on  bond 299 

contracts 162 

plea  of 311 

Relevant  Evidence 328 

Facts 328 

Remainder,  estates  in 97-99 

contingent 99 

how  created 97 

in  personal  property 144 

vested       98 

Remedies,  compensatory     237 

ex<ra-judicial 237-247 

judicial 237,  248 

legal      2,  237 

preventive 237 

Remitter,  as  a  remedy 246 

Remittitur 345 

Rent 62 

Rent  Charge 62 

Rent  Seek 62 

Rent  Service 62 

Rents,  distress  for 242 

incident  to  reversion 96 

Requisition,  arrest  by 586 

Repeal  of  Law  Creating  Crime,  effect  of 461 

Repetendo,  in  civil  pleadings 309 

indictment 593 

Repleader      344 

Replevin,  action  of 2G2 

damages  in      262 

demand  before  suit,  when  necessary 262 

execution  in 347 

for  goods  distrained 262 

not  same  as  detinue 263 

special  defences  in 289 

pleas  in 320 

who  may  bring 262 

Replication,  in  pleading 312 

Reprisal 444 

Republic,  as  a  form  of  government 416 

Repugnancy,  in  civil  pleadings 305 

indictment 593 

Reputation,  defined 36 

crimes  against 549 

protected  by  law 37 

Res  Adjtidicata,  as  a  defence 283 

Res  Gesta 608 


748  INDEX 

[The  references  are  to  sections] 

Rescission  of  Contracts 161,  353 

Rescue 517 

Reserved  Powers  of  States  of  American  Union 415 

Resistance  to  Unlawful  Arrest 40,  238,  529,  585 

Respondentia  Bond -  382 

Resulting  Trusts 357 

Resulting  Uses 100 

Retainer,  as  a  remedy 245 

by  enticing  away  of  a  servant      229 

Retorno  Habendo 347 

Retorsion 444 

Retraxit,  judgment  on 345 

Return-Day 299 

Return,  of  civil  process 299 

criminal  process 587 

Revenue  Laws,  breach  of,  as  a  crime 494 

Reversion,  estates  in 96 

in  personal  property 144 

rent  incident  to 96 

Reversioner,  may  sue  for  injury  to  property 260 

Revocation  of  Wills      138 

Revolution,  how  effected 428 

right  of 428 

Reward,  for  arrest 585 

Right,  defined 2 

absolute  or  relative 28, 171 

contingent 19 

expectant 19 

family 28,  171 

how  affected  by  changes  in  the  law 19 

legal,  defined      2 

natural,  when  becomes  legal 429 

personal,  defined 28 

private,  defined 3 

property,  defined 28,  42 

public,  defined 3 

to  kill  another  innocent  person  to  save  one's  self,  denied  469 

Riot 496 

Robbery,  the  larceny 565 

violence  or  putting  in  fear 566 

Rout 496 

Rule  against  Perpetuities 102 

Rule  in  Shelley's  Case      101 

Rules  of  Court 249 

Safe  Conducts  in  War,  violation  of  a  crime 484 

Safe-Guard,  for  persons  or  property  in  war,  violation  of  a  crime  452 

Safety  of  the  People  is  the  Supreme  Law      3,  38,  41 

Sailing  Rules 386 

Sale,  contract  of 163 

of  property,  in  admiralty  suits      396,  400 


INDEX  749 

[The  references  are  to  sections] 

ScUtis  PoptUi  Suprema  Lex 3,  38,  41 

Saxvage 389 

Sanitary  Regulations,  lawful 33,  35,  38 

Schoolmaster,  authority  to  govern  and  punish  pupil    .    .    .       38,  179 

Scire  Facias 272,  347 

special  defences  in       291 

Scolding  and  Vituperation,  as  a  crime 502 

Sealing  of  Deeds 132 

Seamen,  defined 384 

contract  of 384 

discharge  and  return  of 384 

lien  of  on  vessel      384 

rights  and  duties  of 384 

shipping  articles 384 

wages  of 384 

Search  of  Arrested  Person 589 

Vessels  and  Cargo 456 

Seaworthiness  of  Vessel,  warranty  of 381,  384 

Secondary  E\^DENCE 331 

Security  of  Person,  law  protects 29-38 

Sedition,  as  a  crime      493 

Seditious  Libels  against  Foreign  States 484 

Seduction,  sis  a  crime 547 

of  child 225 

servant 229 

ward 227 

Seisin,  defined 71-75 

ancient  actions  for 253 

in  fact  and  in  law 71 

of  estates  executory 100 

in  remainder 95-99 

reversion       96 

freeholds  iti  futuro 72 

owner  in  fee  during  life  estates  of  others 85 

trust  estates      100 

uses 100 

•per  my  et  per  tout 105,  107 

and  not  per  tout 108 

tout  and  not  per  my 106 

under  present  laws 75 

warranty  of,  in  deeds 131 

when  assertible      71,  76 

Seizures  for  Violation  of  Revenue  Laws,  etc 392 

Self-defence 33,  40,  238,  529,  585 

as  a  defence  in  criminal  cases 467,  469 

by  taking  life  of  innocent  person,  unlawful     .    .    .     469 

of  property 45 

Sentence  in  criminal  cases 613 

commutation  of 603 

suspension  of      474,  603,  613 

Separate  Maintenance  of  Married  Women 364 


750  INDEX 

[The  references  are  to  sections] 

Servant,  abduction  of 229 

battery  of 229 

damages  recoverable  by  master  for  injury  to 229 

servant  for  injury  to  master    .  230 

injury  of  by  master      233 

to  master  by      234 

retainer  of      229 

rights  and  duties  of      165,  189-192 

seduction  of 229 

slander  of 192 

wrongs  against      230 

Service,  contracts  of 165,  189-192 

Service  of  Process      299 

Servitude,  defined 57 

Set-Off 292 

Settlement  of  Estates  in  Probate  Courts 405 

Severalty,  estates  in 104 

Severance  of  Property  from  Possession  of  the  Owner,  in 

larceny 561 

Sexual  Crimes,  according  to  nature      505 

against  nature 505 

Shelley's  Case,  Rule  in 101 

Sheriff,  duties  and  powers  of 248 

Shifting  Uses 100 

Ship's  Husband 380 

Shore,  defined 54 

ownership  of 54 

Signal  Rules 386 

Signature  of  Deeds 132 

Similiter 312 

Slander,  as  a  civil  wrong 205 

crime 549 

of  property,  injunctions  against 349 

wife  to  husband 224 

Slave  Trade 485 

Smells,  may  be  nuisance      203 

when  offensive,  may  be  a  crime 509 

Smuggled  Goods,  proceedings  as  to 392 

title  to 148 

Smuggling,  as  a  crime      494 

Sodomy 505 

Sole  and  Separate  Use 174,  364 

Sole  Tort-Feasors 235 

Solicitations,  as  a  crime 576 

Solicitor  in  Equity 370 

Sovereigns,  persons  of  in^aolable 437 

travelling  abroad 433,  437 

Sovereignty,  defined 410 

external  and  internal 411 

extends  to  fruits  of  its  exercise 411 

embraces  unoccupied  lands 433 


INDEX  751 
[The  references  are  to  sectioas] 
SovEREiQNTT.  — Continued. 

includes  what  powers 431 

origin  of 431 

territorial  limits  of 433 

when  incomplete 432 

governmental  system  represents 411 

seat  of  is  in  the  people 411 

undelegated  remains  in  the  people 411 

Sovereignty  of  the  States  of  the  American  Union     ....  415 

Special  Appearance,  when  necessary 300 

Special  Bail  to  the  Action 300 

Special  Issue 310 

Special  Occupant 80 

Special  Plea  in  Bar 311 

Specific  Intent,  defined      471 

crimes  aggravated  by 543 

how  affected  by  intoxication  of  actor      ....  471 
must  be  proved  as  part  of  criminal  act  .    .     471,  608 

Specific  Performance  of  Contracts 352 

Spies,  treatment  of  when  caught 449 

Spring,  right  to  use  water  from 68 

Springing  Uses     100 

Standing  Mute      596 

Stare  Decisis,  doctrine  of 9 

State,  defined 2,  410 

cannot  be  sued  without  its  consent 430 

citizens  of,  who  are 423 

creates  and  extinguishes  crimes  and  penalties 461 

dominions  include  what 423 

fixes  penalties  for  crimes      475 

jurisdiction  includes  what 423 

liable  for  wrongs  committed  by  its  own  subjects  when  .    .  430 

must  protect  citizens  against  wrongs 429 

by  amending  defective  constitutions 429 

enacting  and  enforcing  proper  laws 429 

obtaining    adequate    protection    from    foreign 

States 429 

redress  all  wrongs  against  its  subjects 430 

by  maintaining  proper  courts 430 

repealing  oppressive  laws 430 

securing  proper  recompense  from  foreign  States  430 

necessary  to  society 2 

police  powers  of 421 

political  supremacy  of 410 

power  to  arrest  criminals 38 

compel  military  and  naval  service     ....       38,  426 

meet  all  emergencies 63 

take  private  property  for  public  use      .    .    .     124,  427 

rights  over  citizens  and  resident  aliens      426 

persons 426 

property      427 


752  INDEX 

[The  references  are  to  sectional 

State,  rights  to  acquire  new  territory 436 

arrest  accused  persons      41 

extradite  criminals 41,  586 

protect  health  by  police  powers 41,  421 

service  of  subjects  in  army  and  navy    .    .    .    .41,  426 

sovereignty  of,  resides  in  people 411 

wrongs  against 483-494 

subordinate  to  law 412 

susceptible  to  wrongs 482 

territory  of,  includes  what 433 

ultimate  owner  of  all  property 115,  128 

welfare  of,  is  the  welfare  of  the  people  individually    .    .    .     495 

wrongs  committed  by,  how  redressed 430 

State  Constitutions,  a  limitation  of  powers 412 

State  Courts 248 

jurisdiction  of  in  criminal  cases 580,  581 

State,  Foreign,  crimes  against 483 

raising  troops  to  invade      484 

wrongs  of  their  own  citizens,  adoption  of    .     429,  430 

State  Insolvent  Laws 406 

States,  creation  of  and  admission  into  the  family  of  nations   .    .     435 

comity  of 18 

duty  to  maintain  armies 443 

other  States 443 

themselves      443 

effect  of  combination  of      435 

division  of      435 

successful  rebellion  of 435 

intercourse  between  in  times  of  peace 437-444 

a  matter  of  right 437 

by  intervention 441 

ambassadors,  etc 438 

sovereigns  in  person      437 

treaties 440 

intercourse  between  in  time  of  war 445-459 

international  etiquette 440 

reciprocal  rights  and  duties  in  times  of  peace     .    .    .     435-444 

war  ....     445-459 

States  of  American  Union,  citizens  of,  who  are 425 

functions,  powers  of 420 

reserved  powers  of 415 

sovereignty  of 415 

treason  against 490 

State's  Evidence      614 

Statements,  accompanying  an  act 330 

as  part  of  the  res  gestcB      330 

by  persons  since  dead  or  insane,  etc 330 

testator  since  deceased 330 

witness  under  oath -_        .    .     330 

in  course  of  business 330 

discharge  of  duty 330 


INDEX  753 

[The  references  are  to  sections] 

Statements,  in  reference  to  pedigree,  family  affairs,  etc 330 

Statements  of  Case  by  Counsel 326,  609 

Status  of  Persons 22 

Statute,  a.  d.  1285,  extending  common  law  actions 252 

Statute  of  Anne,  double  pleading 311 

Statute  de  Donis 79 

Statutes  13  and  27  Elizabeth,  fraudulent  conveyances  ....  136 

Statute  of  Frauds 129,  160 

Statute  32  Henky  VIII,  concerning  wills 137 

Statute  Merchant 92 

Statute  Quia  Emptores 77 

Statute  Staple 92 

Statute  of  Limitations 280 

as  a  defence 280 

effect  on  title  to  land 119,120 

Statutes  of  Wills  and  Administrations 137,  401 

Statute  of  Uses 74 

Statutes,  defined 15 

affirmative  or  negative 16 

classes  of 16 

contents  of 15 

courts  take  judicial  notice  of 16 

declaratory  or  remedial      16 

enacting  clause  of 15 

exceptions  in 15 

general  or  local 16 

interpretation  of 17 

mandatory  or  directory      16 

penal 16 

perpetual  or  temporary      16 

preamble  of 15 

presumed  to  be  remedial 16 

private  or  public 16 

private  must  be  pleaded  and  proved 16 

prospective  and  retrospective 16 

provisos  in 15 

repeal  of 15 

take  effect  when 15 

title  of 15 

validity  of 15 

Statutory  Actions 274 

special  defences  in 291 

Statutory  Arson      555 

Statutory  Burglary  560 

Statutory  Crimes 477 

how  described  in  indictment 594 

Statutory  Penalties,  in  equity 355 

Stay  of  Execution 346,  616 

Judgment 344 

Stealing      561-564 

Step-children,  rights  of ISO 

48 


754  INDEX 

[The  references  axe  to  aectiona] 

Stevedores 387 

Stipulations,  in  admiralty  suits 396 

Stock  Corporations,  shares  in 25 

Stockholders,  title  to  stock  by  succession 149 

Stolen  Goods,  receiving,  when  a  crime 518 

Structures  of  One  Person  United  with  the  Labor  or  Ma- 
terials OF  Another,  ownership  of 153 

Study  of  Law,  includes  what      1,11 

Subject,  defined 422 

duty  to  State 426,  427 

obedience,  support,  etc 426,  427 

rights  against  State 429,  430 

protection,  redress 429,  430 

Subject-Matter,  of  action      251 

jurisdiction  over  how  obtained    .    .    .      251 
Submission  of  Case  to  Jury,  with  request  to  court  to  direct  the 

verdict      341,  342 

Subornation  of  Perjury 519 

Subpoena 338 

Subpoena  Duces  Tecum 338,  365 

Subrogation,  of  sureties  to  securities  for  debt 170,  362 

Substance  of  Issue      328 

Succession,  title  by 149 

Sudden  Combat,  in  cases  of  homicide 535 

Sue  and  be  Sued,  right  to 39 

Sufferance,  estates  by 89 

Sufficiency  of  Pleading,  to  cover  previous  plea 304 

Suicide 524 

attempting  or  enticing  to  commit 524 

Summons,  writ  of 299 

Sunday  Laws,  violation  of  as  a  crime 502 

Superior  in  Family,  wrongs  against  inferior 233 

by  inferior 234 

Supersedeas,  on  writ  of  error 273,  346 

Support  of  Land,  by  other  land 64 

Suppression  of  Truth 197 

Supreme  Court  of  the  United  States 248 

Sureties,  rights  and  liabilities  of 170 

contribution,  exoneration,  subrogation 170,  362 

Surface  Waters 54 

Surplusage,  in  civil  pleadings 305 

indictments 593 

Surrender,  of  accused  by  sureties  on  his  bond 588 

deed  of 130 

Surrogate's  Courts 401 

Survivorship,  right  of      105,  107 

Suspension  of  Sentence 474,  603,  613 

"Sweating  Process,"  unlawful      589 

Taking  and  Carrying  Away,  in  asportation 217 

larceny 561 


INDEX  755 

[The  references  are  to  sections] 

Tax  Lien 247 

Taxation,  direct  and  indirect      427 

right  of 147,  427 

Taxes  and  Assessments,  collection  of 122 

Technical  Words,  in  indictments,  when  necessary 595 

Tenant,  forfeiture  for  disclaimer  of  landlord's  title 118 

waste 118 

Tenant  at  Will,  rights  of 86 

Tenant  for  Life,  rights  and  duties  of 85 

Tenant  for  Years,  rights  and  duties  of 88 

Tenant  from  Year  to  Year,  estate  of 87 

Tenants  of  Estates  in  Real  Property 103-111 

in  common 108 

cannot  steal  from  one  another  .  563 

coparcenary 107 

entirety 106 

joint-tenancy 105 

partnership 109 

severalty 104 

number  and  connexion  of 103-111 

partition  between Ill 

rights  and  duties  of 110 

Tender  of  Payment 168 

Tenendum 131 

Tenure  of  Estates 90 

Territorial  Courts 248 

Territorial  Limits  of  State 433 

Territories  of  the  United  States,  citizens  of 425 

Territory,  acquisition  of  by  cession      436 

conquest      436 

discovery 436 

Invaded,  treatment  of 451 

Testament,  title  by 157 

Testamentary  Guardians 183 

Testate  Estates,  settlement  of 402,  405 

Testator,  mental  capacity  of      137 

Testimony,  when  false      519 

given  under  oath 519 

Theft 561-564 

Thief,  stealing  from  a 563 

Thing,  is  what  the  law  defines  it  to  be 26 

Things,  classes  of       26 

corporeal  and  incorporeal 26 

movable  and  immovable 26 

personal  and  real 26 

"  Third  Degree  "  unlawful 589 

Threats 200,  201 

Timber  Trees,  classes  and  ownership  of 55 

Time,  when  essence  of  a  contract 355 

Time  in  Law 182 

fractions  of  a  day 182 


756  INDEX 

[The  references  are  to  sections] 

Tithes     60 

Title  to  National  Territory,  by  cession 436 

conquest 436 

discovery 436 

Title  to  Personal  Property,  by  accession 153 

confusion 154 

contract 158-170 

creation      155 

forfeiture 148 

gift      156 

judicial  decree 151 

marriage 150 

occupancy 152 

prerogative 147 

succession 149 

testament 157 

Title  to  Real  Property,  by  abandonment 117 

accretion 116 

adverse  possession 120 

deed 129-136 

descent 112,  113 

devise 137-139 

eminent  domain 124 

escheat 115 

estoppel 126 

execution 122 

forfeiture 118 

grant 127 

judicial  decree 123 

marriage      121 

prescription 119 

prior  occupation 125 

private  grant      129-136 

public  grant 128 

purchase 112,  114 

will 137-139 

Titles  Pretended,  sale  of 523 

Tolls 63 

Tort 196-236 

classes  of 199 

contract,  breach  of  a  tort 220 

when  elevated  into  crime 460 

Tort-Feasors,  joint  or  sole 235,  236 

joint,  contribution  between  when 236 

payment  by  one  discharges  the  others     .    .     236 

severally  liable 236 

"  Total  AND  Partial  Loss  " 390 

Towage,  tug  and  tow,  rights  and  duties  of 385 

Trade  between  Belligerent  States      452 

armistice,  licenses,  passports,  safe-conducts,  etc.      .    .     452 
cartels,  cartel-ships,  truces,  etc 452 


INDEX  767 

[The  references  are  to  sections] 

Trade,  combinations  against 208 

crimes  against 506,  507,  552 

wrongs  against 221 

TkA  VERSES 303 

absque  tali  causa,  absque  hoc,  nee  non,  etc 303 

common,  technical,  general,  special 303 

de  injuria  sua 303 

effect  of,  and  judgments  on 303 

Treason,  defined 486 

acts  committed  through  fear  of  death,  not 488 

against  the  United  States,  by  levying  war 487 

adhering  to  enemy  .    .    .  488 

the  overt  act 489 

States  of  the  American  Union      490 

attack  on  official  persons,  not 487 

misprision  of 492 

persons  capable  of 491 

under  ancient  laws 486 

Statutes  of  Edw.  Ill,  Henry  VIII,  etc 486 

Treason,  Felony,  Misdemeanor,  distinguished 476 

Treasonable  Purpose 487 

Treaties 440 

of  the  United  States,  how  made 13 

Treaty,  defined      13 

force  and  authority  of 13,  440 

how  made 13 

Treaty  of  Peace 453 

Treaty  Rights,  violation  of,  against  foreign  States 484 

Trees,  ownership  of 55 

Trespass,  as  a  wrong 217 

injunctions  against 349 

when  treated  as  a  disseisin 210,  254 

Trespass,  action  of 259 

special  defences  in 286 

pleas  in 317 

when  plaintiff  must  claim  title 317 

Trespass  de  Bonis  Asportaiis 217 

Trespass  on  the  Case,  action  of 260 

a  concurrent  remedy  when 260 

damages  in 260 

special  defences  in 287 

pleas  in 318 

Trespass  Quare  Clausiim  Fregit 213 

Trespasser  ab  Initio 213 

Trespasser,  may  be  treated  as  disseisor  when 210 

Trial  in  Admiralty 399 

Trial  in  Civil  Actions 250,  325-344 

order  of 326 

Trial  in  Courts  of  Probate      409 

Trial  in  Criminal  Cases 605-612 

arguments  of  counsel 609 


758  INDEX 

[The  references  are  to  sections] 
Trial  in  Criminal  Cases  —  Continued. 

charge  of  court 610 

deliberations  of  jury 611 

evidence 608 

judgment  and  execution 613-617 

motions  for  new  trial,  arrest  of  judgment 612 

rights  of  accused 589,  607 

to  trial  by  jury 605,  606 

Trial  in  Equity 373 

Troops,  raising  to  invade  foreign  States 484 

Trover,  action  of 261 

damages  in      261 

demand  before  suit  when  necessary 261 

special  defences  in 288 

pleas  in 319 

title  of  defendant  to  property  when 151 

when  concurrent 261 

who  may  bring 261 

Trover  and  Conversion,  as  a  wrong 219 

Truce 452 

"True  Bill" 592 

Trust,  Deed  of 92 

Trustee-Process 271 

Trustees,  probate  jurisdiction  over 407 

Trusts,  origin  of    .    . 74 

active  or  passive 357 

conventional  or  legal 357 

executed  or  executory 357 

private  or  public 357 

resulting  or  constructive 357 

Ubi  jus  ibi  Remedium 2,  237 

Ultimatum      445 

Ultra  Vires 24 

Unborn  Child,  not  subject  of  homicide 31,  526 

Uncertainty,  in  an  indictment 593 

"  Under  a  Whereas  " 305 

Unlawful  Arrest 585 

Unlawful  Assembly 496 

Unlawful  Contracts,  when  invalid 158 

United  States,  citizens  of  who  are 424,  425 

by  birth  or  adoption 424 

courts  of 248 

executive  functions  of 419 

external  sovereignty  of 413 

authority  over  conquered  States      ....  413 

internal  sovereignty  of 414 

judicial  functions  of 418 

powers  and  prohibitions  of 418 

land  system  of 128 

legislative  functions  of 417 


INDEX  759 

[The  referenees  are  to  sections] 

United  States,  legislative  limitations  of 417 

treason  against      487-489 

unwritten  criminal  law  of 581 

Unwritten  Law,  defined 8 

expressed  where 10 

interpretation  of 11 

origin  and  development  of 9 

Uttering  Counterfeit  Coin      570 

Forged  Instrument 569 

Use  and  Occupation,  implied  contract  of 159 

"  Use  upon  a  Use  " 74 

Useless  Litigation,  prevention  of  in  equity 367 

Uses,  origin  of 73 

contingent,  resulting,  shifting,  springing 100 

Statute  of 74 

Usury 168 

Vagrancy,  when  a  crime      502 

Validity,  of  contracts 161 

VA1.UED  Policy  of  Insurance 390 

Vegetation 55 

Vendee's  Lien 92 

Vendor's  Lien 92,  247 

Venditioni  Exponas 347 

Venire 326 

Venue,  change  of 598 

in  civil  actions      309 

of  crime,  how  determined 580 

when  crime  is  statutory      594 

Verdict  of  Jury,  general,  partial,  special 343,  611 

judgment  on 345 

Verification,  in  pleading 304 

Vessel,  defined 379 

burglary  in 560 

enrolment  of 379 

hiring  of 381 

master  of,  his  rights  and  duties 380,  383,  384 

ownership  and  use  of      380 

part  owners,  rights  of 380 

registry  of 379 

sale  of 379 

Vessels  of  Belligerents,  capture  of 450 

Vessels  of  War,  injury  to  when  a  crime 494 

Vested  Remainder 97,  98 

Vexatious  Sui-^ 206 

Victim  ok  Crime,  defined 474 

consent  of,  no  defence 32,  202,  474 

enticement  of,  no  excuse 474 

Village  Communities 70 

Violence,  defined      200,  202 

Violence  or  Putting  in  Fear,  in  robbery 566 


760  INDEX 

[The  references  are  to  sections] 

Vivum  Vadium 92 

Voluntary  Associations 23 

Voluntary  Conveyances 136 

Voluntary  Manslaughter 532,  534-536 

Wagering  Contracts 167 

Waiver,  by  general  appearance  to  actions 300 

War,  defined 445 

causes 444 

divides  the  people  into  combatants  and  non-combatants     .  446 

combatants  only  have  a  right  to  fight 446 

non-combatants  remain  in  peace 446 

effect  of  breaking  out      445,  446 

on  property  right  of  citizens 447 

on  public  debts  none 447 

formal  declaration  unnecessary 445 

justification  of      444 

makes  the  belligerent  nations  legal  enemies 446 

must  have  an  adequate  cause 445 

prevention  of  by  arbitration 444 

embargo 444 

pacific  blockade 444 

reprisal 444 

retorsion      444 

suspends  political  and  commercial  intercourse 446 

warning  should  be  given  to  hostile  State 445 

by  ultimatum,  etc.      .    .    .  445 

to  neutral  States 445 

what  conflicts  are  not  war 445 

War  Munitions,  destroying,  as  a  crime 494 

Ward,  abduction  of 227 

battery  of 227 

damages  recoverable  by,  for  injuries  to  guardian    ....  228 

injury  of  by  guardian 233 

by  to  guardian 234 

seduction  of 227 

Warrant,  form  and  service  of 583 

in  blank,  not  lawful 583 

Warranty,  covenant  of,  in  deeds 131 

express  or  implied 163 

in  marine  insurance 390 

in  sales  of  goods 163 

Waste,  defined      85,  88,  215 

action  of 260 

by  tenant,  or  stranger 215 

forfeiture  for 118 

injunctions  against 349 

tenant  must  prevent 215 

Water,  effect  of  changes  by 116 

right  to  use,  accumulate,  discharge,  etc 54,  68 

Watercourse,  diversion  or  pollution  of 68,  509 


INDEX  761 

[The  references  are  to  sections] 

Waters,  boundary  line  in  or  on 54,  116 

fishing  rights  in      54,  68 

navigable  and  non-navigable 54 

obstructing,  as  a  crime 502 

public  and  private 54 

Waterways,  between  States 433 

Wat     69 

Way  of  Necessity 58,  69 

Weapons,  concealed  or  dangerous,  carrying  of 501 

Weights  and  Measures,  False,  a  crime      506 

Welsh  Mortgage      92 

Weregild,  modem  forms  of 226 

Wharf  Rights 54 

right  to  wharf  out      54 

Wife,  abduction  of 223 

acts  in  presence  of  husband,  when  not  crimes 470 

alienating  affections  of 223 

battery  of 223 

cannot  steal  from  husband 563 

sue  or  be  sued  alone 174 

criminal  conversation  with 223 

has  no  contracting  power      174 

right  to  protection,  support,  necessaries 176 

husband's  safety,  society,  affections     ....     177,  224 

rights  of,  how  forfeited  or  suspended      176 

sole  and  separate  property  of 174,  364 

status  of,  in  equity 174 

when  deserted  may  be  regarded  as  fenie  sole 173 

may  not  testify 329 

wrongs  against 224,  233 

Wild  Animals,  ownership  of 43,  143,  152,  153 

Wills,  interpretation  of 139 

probate  of,  in  common  form,  in  solemn  form 402 

revocation  and  revival  of 138 

Wills  of  Personal  Property 157 

Real  Property 137 

capacity  of  testator 137 

how  made 137 

interpretation  of 139 

revocation  of 138 

under  feudal  law 137 

statutes  32  Henry  VIII,  etc 137 

when  take  effect 137 

Witnesses,  accused  must  be  confronted  with 607 

cannot  be  compelled  to  incriminate  themselves  .    329,  608 

competency  of 337 

confidential  communications  respected 329 

of  counsel  and  client 329 

husband  and  wife 329 

physicians  and  patients 329 

priests  and  penitents 329 


762  INDEX 

[The  references  are  to  sections] 

Witnesses  —  Continued. 

of  transactions  with  persons  now  deceased  .    .  329 

to  public  officers 329 

contradiction  and  impeachment  of 340 

cross-examination  of 338 

direct  examination  of 338 

by  depositions 339 

experts 337 

how  summoned  into  court 338 

may  refresh  memory  from  memoranda 338 

redirect  examination  of 338 

testimony  of  in  open  court      337 

Words  of  Abuse,  when  not  slander 205 

Wounding 202 

Wreckage,  ownership  of      116 

Writ  of  Error,  in  civil  cases 273,  346 

coram  nobis,  coram  vobis 273 

special  defences  in 291 

criminal  cases 614 

Writ  of  Inquiry 345 

Writs,  ancient  and  modern 299 

defective  or  unlawfully  issued  or  served,  as  defence  .    .    .  279 

of  assize,  admeasurement  of  dower,  entry,  formedon,  etc.  253 

dower,  right,  etc 253 

Written  Law,  defined      8 

forms  of 12-16 

interpretation  of 17 

Wrong,  legal,  defined 2 

private,  ingredients  of 196,  197 

Wrongs,  against  personal  rights 200-208 

property 217-221 

rights  in  real  property 210-216 

committed  by  agents 235 

animals      235 

corporations 235 

fellow  citizens 429 

foreign  citizens 430 

infants 235 

lunatics 235 

married  women 235 

persons  under  duress 235 

private,  classes  of      199 

torts  or  breaches  of  contract 199 

Wrongs  Joint,  as  a  defence 281 

"Year  AND  A  Day,"  in  homicide 527 

Year  Books 10 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


Form  L9-Series  4939 


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